Warner v. Arctic Ice Co.

• Decision Date: 23 February 1883
• Citation: 74 Me. 475
• Parties: JOSEPH R. WARNER v. THE ARCTIC ICE COMPANY.
• Court: Maine Supreme Court

74 Me. 475

JOSEPH R. WARNER v. THE ARCTIC ICE COMPANY.

Supreme Judicial Court of Maine.

February 23, 1883

ON EXCEPTIONS.

Assumpsit for failure to deliver ice called for by the following and one other similar contract:

" James B. Drake,

Ship and Insurance Broker,

Granite Block, Front Street,

Bath Me., Jan. 22, 1880.

Sold to J. R. Warner, three thousand tons of ice, more or less enough to load two ships, at $1.50 per ton, f. o. b. packed suitably for shipment to New Orleans. Said ice to be taken on or before November first, eighteen hundred and eighty.

Frank O. Moses, Treasurer Arctic Ice Co."

" Accepted as above.

J. R Warner, by J. B. Drake."

" In consideration of five per cent. commission, I agree to pay for the above ice within thirty days from date of shipment.

Jas. B Drake."

" Bath, May 10, 1880. It is agreed by the parties hereto, that 3200 tons fills this contract complete.

Frank O. Moses, Treasurer.

J. B. Drake."

The plea was general issue.

At the trial the presiding justice submitted the question recited in the head note for special finding of the jury, without objection from either party.

Other material facts are stated in the opinion.

W. Gilbert, for the plaintiff.

The question submitted to the jury was erroneous for two reasons: (1.) It assumes that both parties knew that the ice contracted for was intended for a certain market. It does not follow because it was to be packed suitably for a voyage to New Orleans that both parties knew it was intended for that market. The fact assumed should have been submitted to the jury. It amounted to an expression of an opinion by the court. (2.) The qualification of merchantable ice by the use of the word " fair" or as expressed in the instructions by the word " fairly."

The counsel contended in an able argument that the use of those words was calculated to lower the obligations of the defendants, and cited: Kent's Com. 479, note a,--original ed. citing: Howard v. Hoey, 23 Wend. 350; Moses v. Mead, 1 Denio 378.

C. W. Larrabee, for the defendants.

SYMONDS J.

In the trial of the present case, the court was dealing with what at its date was an executory contract for the delivery of ice at a future time; and with the question whether the defendants had broken the contract by a failure to deliver ice of the quality and in the condition required. The few sentences from the charge which are contained in the bill of exceptions show the following ruling to have been given. " Where the purchaser has no sufficient and reasonable opportunity to inspect the goods before or at the time of the sale, and there are no circumstances, such as the smallness of price for example, to negative the presumption that goods of a merchantable quality of the kind bargained for were meant to be bought, the purchaser has a right to expect a salable article of the kind mentioned in the contract; and while the purchaser without special warranty cannot insist that the article shall be of any especially, particularly, good quality, there would be an implied warranty on the part of the seller that it is of fairly merchantable quality."

No claim appearing to have been made that the price was inadequate, or that other circumstances existed to negative the presumption to which the court referred, that qualification of the ruling need not be considered. In all respects to which the exceptions relate, the instruction is fully sustained by authority.

" In every contract to supply goods of a specified description, which the buyer has no opportunity to inspect, the goods must not only answer the specific description, but must also be salable or marketable under that description. In the words of Lord ELLENBOROUGH, in Gardiner v. Gray, 4 Camp. 143, without any particular warranty this is an implied term in every such contract." Jones v. Just, L. R. 3 Q. B. 197, 205; Morley v. Greyson, L. R. 4 Ex. 49, 52; Harris v. Waite, 51 Vt. 480; Merriam v. Field, 39 Wis. 578; Hastings v. Lovering, 2 Pick. 220; Swett v. Shumway, 102 Mass. 365.

" The fundamental undertaking is, that the article offered or delivered shall answer the description of it contained in the contract. That rule comprises all the others; they are adaptations of it to particular kinds of contracts of purchase and sale. You must, therefore, first determine from the words used, or the circumstances, what in or according to the contract is the real mercantile or business description of the thing which is the subject matter of the bargain of purchase and sale, or, in other words, the contract. If that subject matter be merely the commercial article or commodity the undertaking is that the thing offered or delivered shall answer that description, that is to...