FURNESS, WITHY & CO., Limited, v. LEYLAND SHIPPING CO., Limited, et al.; SAME v. BOSTON ELEVATED RY. CO. THE PLANET NEPTUNE. THE MERIDIAN, 134 F. 815

PUTNAM, Circuit Judge. These appeals arise out of two cargoes imported in two different steamers, but covered in one agreement of sale by Furness, Withy & Co., Limited, to the Boston Elevated Railway Company, of 10,000 tons of Welsh small admiralty steam coal. The question before us arises solely between Furness, Withy & Co., Limited, and the Boston Elevated Railway Company. In each case there was a decree in the District Court in favor of the Boston Elevated Railway Company, and Furness, Withy & Co., Limited, appealed to us.

The origin of the transactions, so far as the same appears by anything written, is shown by the following correspondence: Boston, Oct. 3d, 1902. Edward Mahler, Esq., Purchasing Agent, Boston Elevated Railway Co-Converse Building — Dear Sir: We beg to confirm sale, up to 10,000 Tons Welsh Small Admiralty Steam Coal, for shipment last half October and first half November at a price of $5.45 per Ton of 2240 Lbs. delivered alongside your Company’s Pier at Lincoln Wharf, or overside in the Harbor into Lighters.

This Price to include Cost, Insurance and Freight to Boston, also United States Duty of 67c. per Ton, and it is agreed that should your Company be able to procure any reduction of the Duty such rebate will be for account of the Boston Elevated Railroad Co. It is also agreed that should the work of discharge be effected at Lincolns Wharf by the Boston Elevated Railroad Co. a rebate of 20c. per Ton will be allowed for this work. Kindly confirm and we shall be pleased to be advised should you desire to make further purchases. Yours faithfully, For Furness, Withy & Co- Ltd., Robt. E. Burnett.

Boston, Mass., Oct. 3d, 1902. Furness, Withy & Co., Ltd., 85 Water Street, Boston, Mass.- — Dear Sirs: Have your favor of the 3rd inst. beg to confirm sale to this Company of 10,-000 tons of Welsh Small Admiralty Steam Coal, shipment the last half of October and the first half of November at terms and conditions as stated. In making charters of steamers, of course we would prefer steamers that would be able to discharge from our Lincoln Wharf Dock. The length of wharf is 283 feet; the dock was dredged for 22 feet at low water. Kindly advise when charters are made giving the name of steamers, dimensions, etc.

When we are again in the market will advise you. Yours truly, Ed’wd Mahler, Purchasing Agent. 85 Water Street, Boston, October 4, 1902. Edward Mahler, Esq., Purchasing Agt. Boston Elevated R. R. Co., 101 Milk St., Boston — Dear Sir: We are favored with your letter of October 3rd, which is in order, except that of course all sales made are subject to the usual strike & Colliery conditions. We shall be pleased to be advised whenever you are in the market for further importations. Yours faithfully, For Furness, Withy & Co., Ltd., Robt. E. Burnett.

One cargo came.forward by the steamer Meridian, under a charter dated at London on the 3d day of October, and the other by the steamer Planet Neptune, under a charter dated also at London on the 2d day of November, each in 1902. These charters were executed between the owner of the steamers, or the agents of the owner, and Hull, Blythe & Co., coal exporters at London- and Cardiff, who were apparently the parties from whom the coal was originally purchased by Furness, Withy & Co., Limited.

The charters are of the class known as “Chamber of Shipping Welsh Coal Charter, 1896,” and they contain the stipulation found in thát class of charters; providing that the cargo be taken from alongside by the consignee at the port of discharge at a rate per day named therein.

Furness, Withy & Co., Limited, claims that by its sale to the Boston Elevated Railway Company the latter corporation assumed the burden of that stipulation; but the latter claims that, as between Furness, Withy & Co., Limited, and itself, it was bound only by the implied obligation to discharge with ordinary or customary expedition, which obligation arises as of course on the face of the correspondence. On this issue the District Court found, as we have said, in favor of the Boston Elevated Railway Company.

The opinion passed down by the learned judge of that court went over the facts more in detail than we need to, in view of the disposition which we conclude to make of these appeals.

In view of the expression with which its letter of October 3d commences, “We beg to confirm sale,” Furness, Withy & Co., Limited, claims that there had been a previous oral agreement covering the terms of the sale, by virtue of which the Boston Elevated Railway Company assumed the burden of the stipulation in the charters to which we have referred, and that this expression adopted that oral agreement, so that Furness, Withy & Co., Limited, is entitled to supplement the correspondence by proof of it.

The learned judge of the District Court was of the opinion, first, that, under the rules of law, the correspondence constituted on its face a complete contract, and so could not thus be varied by parol; and, second, that, if it could be varied, Furness, Withy & Co., Limited, failed to support its proposition as to the oral understanding.

For the details of these conclusions, we refer to his opinion, which we adopt so far as the issue before us is concerned; supplementing the same with the following suggestions: In our view, the expression in the letter from Furness, Withy & Co., Limited, of October 4, that is, the words “which is in order,” especially in connection with the single exception which follows, show that the correspondence was intended to express and did express the entire contract.

Moreover, it is to be observed that the first letter in the series contains the following: “It is also agreed that should the work of discharge be effected at Lincolns Wharf by the Boston Elevated Bailway Co. a rebate of 20c. per ton will be allowed for this work.” This is persuasive from two points of view: First, there is nothing in either charter which in any way corresponds with this special stipulation, or calls for it.

Therefore, in the particular of the provison in the charters with regard to the discharge of the cargoes, the correspondence makes a departure so peculiar that, whatever might be the possibility of maintaining that in some other particulars there was a prior oral agreement to which the words already quoted, “We beg to confirm sale,” might be thought to relate, it follows that, on the sole issue between the parties before us, the correspondence is the master.

Again, it is apparent that this particular provision for a rebate arose from the fact that, when or before the correspondence occurred, the Boston Elevated Railway Company had assured the sellers, or had expressed the hope, that it would be able to receive delivery at the wharf named. It is also apparent that, if the coal had been received at that wharf, it certainly could have been discharged at the daily rates stipulated in the charters, and perhaps even more rapidly, and no other advantage could apparently have come therefrom.

If the Boston Elevated Railway Company had assumed the stipulations with reference to the daily rates of discharge, it would necessarily have been a matter of absolute indifference to Furness, Withy & Co., Limited, whether the coal was discharged at Lincoln’s Wharf or elsewhere, so that in that event the stipulations for rebate would have involved pure gratuities on their part. The stipulated rebate, therefore, is necessarily inconsistent with any understanding, oral or otherwise, such as is now claimed by the vendor of the coal.

All this brings the case within the practical rule by which several writings, although informal, taken together, may be seen to constitute a complete legal engagement, as stated by Judge Aldrich, in behalf of this court, in Church v. Proctor, 66 Fed. 240, 241, 13 C. C. A. 426. Consequently, in any view, we conclude that the Boston Elevated Railway Company was bound only to the implied ordinary or customary diligence, and that the decrees of the District Court were correct.

In each case the judgment is: The decree of the District Court is affirmed, and the Boston Elevated Railway Company recovers its costs of appeal from Furness, Withy & Co., Limited.