Sunset Tel. & Tel. Co. v. Day

• Decision Date: 08 October 1895
• Docket Number: 214.
• Citation: Sunset Tel. & Tel. Co. v. Day, 70 F. 364 (9th Cir. 1895)
• Parties: SUNSET TELEPHONE & TELEGRAPH CO. v. DAY et al.
• Court: U.S. Court of Appeals — Ninth Circuit

70 F. 364

SUNSET TELEPHONE & TELEGRAPH CO. v. DAY et al.

No. 214.

United States Court of Appeals, Ninth Circuit.

October 8, 1895

The defendants in error, plaintiffs in the court below, sued plaintiff in error, defendant in the court below, to recover the sum of $5,717. For convenience we shall designate the parties, as they appear in the controversy in the court below, as plaintiffs and defendant. The cause of action, as stated in the complaint, is that defendant employed plaintiff to furnish it, at San Pedro, Cal., 2,005 telephone poles at $3.20 each, and 226 poles at $6 each, to be paid for on delivery at the wharf at San Pedro, and that plaintiffs duly performed the contract; that the price of the poles amounted to $7,772, of which $2,300 has been paid, leaving due $5,472. The second cause of action is that plaintiffs, in accordance with agreement, 'shipped and freighted,' by the schooner Ranger,-- the schooner which also carried the telephone poles,-- 7,000 cross-arms for telephone poles, at the agreed price of 3 1/2 cents for each cross-arm, making the sum of $245, which has not been paid.

The answer of defendant alleges that the contract with plaintiffs was in writing, and attached a copy to the answer, which is as follows:

'Agreement entered into this 5th day of April, 1892, by and between Day Brothers, of Seattle, state of Washington, and Sunset Telephone and Telegraph Company, of San Francisco, a corporation existing under the laws of the state of California. Said Day Brothers hereby covenant and agree to furnish and deliver on wharf at San Pedro, California, and the said Sunset Telephone and Telegraph Company hereby agree to take and pay for, the following described poles at the prices herein stipulated: Two thousand (2,000) round telephone poles, thirty (30) feet long and not less than seven (7) inches in diameter at the smallest end. Price for the same to be three dollars and twenty cents ($3.20) per pole. Total, $6,400.00. Five hundred (500) round telephone poles, forty feet long, and not less than eight (8) inches in diameter at the smallest end. Price for same to be six dollars ($6.00) per pole. Total, $3,000.00. All of above poles to be of good, sound, live cedar, to be inspected and approved, prior to shipment, by an agent appointed by said Sunset Telephone and Telegraph Company before loading, and to be all delivered in good condition on said wharf, at San Pedro, Cal., by said Day Brothers, to be shipped within fifty (50) days after date. Each cargo to be paid as follows: Thirty (30) per cent. after inspection and loaded on vessel; forty-five (45) per cent. after delivery on wharf at San Pedro, Cal.; twenty-five (25) per cent. after completion of contract,-- this per cent. to be retained in lieu of damages for noncompletion of contract. In addition to the above, said Day Brothers agree to take, on same vessel with cargo of poles, five thousand (5,000) cross-arms, to be landed on said wharf at San Pedro, Cal with poles, at three and a half (3 1/2) cents each. In witness whereof, the said parties have set their hands and seals this fifth day of April, 1892. Day Brothers. (Seal.)

'Accepted for Sunset Telephone Telegraph Co.,

'By Jno. Lawrence, Genl. Supt.

'Witness: A. J. Clark.' Defendant also admits the contract of affreightment of the cross-arms. As affirmative defense, it alleges: That, prior to the commencement of the action, it had fully paid plaintiffs, and, further, that plaintiffs did not perform their contract in this; that they did not furnish 500 poles 40 feet long, nor deliver said poles or the cross-arms at the wharf at San Pedro. That they did not ship the same within 50 days, and did not pay the freight or discharge the lien of the schooner Bangor for the carriage of said poles and cross-arms. That they only procured and shipped 2,000 poles 30 feet long, and 276 poles 40 feet long, representing and pretending that they were the owners of said poles. That about 1,000 of said poles were unlawfully cut and procured from the lands of the Puget Mill Company, a corporation, without its permission or authority, and mixed with the other poles shipped so that their identity could not be established. That, upon the arrival of the schooner at San Pedro, the Puget Mill Company did separately demand from the master of said schooner, and from the managing owner thereof, the possession of said poles, making separate demands, as a matter of precaution, for 1,200 poles; also, for 100 poles; and the said poles being mixed and confused with other poles constituting the cargo, so that the same could not be identified, or said demand complied with, the said company did likewise demand the whole of said cargo of poles. Each and every of said demands was refused by said master and by said owner. That there was due for freight $4,000, for which the schooner was entitled to a lien on the cargo, or so much thereof as was owned by plaintiffs. That there was no market for said poles and cross-arms at San Pedro, and defendants was, at said times, the only purchaser, and required forthwith the amount of poles and cross-arms embraced in said cargo, and if the same or any portion thereof were taken or held by proceedings at law to establish the title or right of the Puget Mill Company, or by proceedings in admiralty to establish the lien of the vessel for freight, the defendant would have been compelled to purchase the poles it required elsewhere, and the market for said poles would have been destroyed. That thereupon, and by reason of the aforesaid facts, and the emergency existing as aforesaid, the master and managing owner of said vessel did take charge of said cargo, and did sell the same to this defendant for the sum of $5,717, which is the amount which would have been due plaintiffs thereon under the contract (Exhibit A), had plaintiffs complied with the terms and conditions thereof, and paid the aforesaid sum of $4,000 freight thereon, and had plaintiffs likewise been the owners of the whole of said cargo. That the cargo was delivered to defendant in pursuance of said sale, and not otherwise, and in pursuance of said purchase it paid the said sum of $5,717 to the master and managing agent of said vessel. And defendant alleges, on information and belief, that the said master, upon proof and assurance of the title of the Puget Mill Company, paid it, out of the proceeds of said sale, $2,200, and the balance is retained to pay the freight on the cargo.

The case was tried by a jury, and the instructions of the court were as follows:

'This is a suit by the plaintiffs, the firm of Day Bros., to recover a balance claimed to be due for a cargo of telephone poles, which were furnished under a contract with the defendant, and delivered at San Pedro, in California. It is conceded that the contract on which the suit is founded was entered into; that the telephone poles were procured by the plaintiffs, and shipped to San Pedro, and the defendant has received

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