Staver Carriage Co. v. Park Steel Co.

• Decision Date: 12 October 1900
• Docket Number: 681.
• Citation: 104 F. 200
• Parties: STAVER CARRIAGE CO. v. PARK STEEL CO.
• Court: U.S. Court of Appeals — Seventh Circuit

104 F. 200

STAVER CARRIAGE CO. v. PARK STEEL CO.

No. 681.

United States Court of Appeals, Seventh Circuit.

October 12, 1900

Almon W. Bulkley, for plaintiff in error.

Harrison Musgrave, for defendant in error.

The plaintiff in error, Staver Carriage Company, sued in assumpsit to recover damages for alleged breach of a contract for the sale of tire steel. The court below sustained a demurrer to the declaration as amended, and the plaintiff elected to stand by its pleading, whereupon judgment was entered against it, and writ of error issued.

The declaration sets up the making by Park, Bro. & Co., Limited a joint-stock company, at Pittsburg, Pa., of the following contract in writing:

'Pittsburg Pa., August 4th, 1898.

'Memorandum of Sale Made by Park, Brother & Co., Limited.

'To Staver Carriage Co., of Chicago, Ill., all the tire steel of good and suitable quality which will be used in buyer's works prior to September 1, 1899, not to exceed 14,000 sets, nor to be less than 10,000 sets, at the following price and terms: (TABLE-OMITTED) 'Deliveries f.o.b. Pittsburg, less car-load rate of freight to Auburn Park, Ill. No freight allowed on shipments of less than 300 pounds. To be specified: For car-load shipments, and in reasonable time for seller to make required deliveries, but all not later than 15 days before the expiration of this contract. Any steel proving defective when used for the purpose specified will be replaced, but no claim for labor or damage will be allowed. In case any shipment of steel proves unsuitable, it is understood that the buyer will immediately discontinue its use and advise the sellers of the fact, that the sellers may have an opportunity of deciding what shall be done under the circumstances, so that possible loss or damage to either party shall be prevented. Serious fires, strikes, differences with workmen, accidents to machinery, or other causes unavoidable or beyond seller's control, shall excuse any delay in filling orders caused thereby. There are no understandings or agreements relative to this contract that are not fully expressed herein, and no changes will be made in this contract unless reduced to writing and signed by both parties. The title to goods delivered under this contract to remain in the sellers until they shall have received the money for the same, and upon failure to make such payment the sellers may repossess themselves and take away said goods. To render this contract binding upon sellers, it must be signed by one or more of their officers, and its acceptance by any salesmen or agent is subject to their approval.

'Accepted.

'Staver Carriage Co.,

'Per W. N. Abbot, Supt.

Accepted. Park, Brother & Co., Limited. W. G. Park, Chairman. 'Jas. H. Park, Manager.

'Signed in duplicate.'

-- And further avers as follows: 'That during the term of said contract, and on or about the 1st day of March, A.D. 1899 the said Park, Bro. & Co., Limited, assigned and conveyed its property, assets, and business to the defendant, in consideration whereof the defendant then and there assumed the performance of the contract aforesaid to be performed on the part of Park, Bro. & Co., Limited, along with other liabilities, and then and there promised and agreed to perform the same in so far as the same remained at that time unperformed by the said Park, Bro. & Co., Limited. That, since said defendant so assumed the performance of said contract, it has only partially performed the same, and has failed and refused to perform the same, in this: That on, to wit, the 6th day of July, A.D. 1899, within a reasonable time to enable defendant to ship the same, and more than fifteen days prior to the expiration of said contract, the plaintiff ordered from and specified to the defendant, in accordance with the terms of said contract, one hundred and thirty-four thousand six hundred pounds of tire steel, of good and suitable quality, part and parcel of the steel mentioned and described in said contract, to be furnished by the defendant to the plaintiff to be used in its works at Auburn Park, Illinois, in accordance with the term of said contract, as follows: (Specifying 3,400 sets, of various descriptions.) All and every of which said tire steel so ordered and specified as aforesaid the defendant failed and refused to ship and deliver to the plaintiff for use as aforesaid, although the amount thereof, together...