NATIONAL CORDAGE CO. v. PEARSON CORDAGE CO., 55 F. 812

PUTNAM, Circuit Judge. The third and fourth requests for instructions to the jury made in the court below by The National Cordage Company,- defendant in that court, and now plaintiff in error, were not carried into the bill of exceptions, and therefore are not before us for adjudication. The eighth and eleventh requests have been waived in this court, and also the questions raised at the trial touching the admissibility of certain testimony.

We will first consider the second request, which was, in effect, that the court instruct the jury that the ireasurer of The National Cordage Company, who purported to have executed the alleged contract in suit, was not authorized to bind that corporation. This court has on two occasions reviewed the law touching the duty of courts to instruct juries to make findings for plaintiff or defendant, as the case may be, ami, has no occasion -to reiterate what has been said, as the rule is clear and thoroughly settled.

The proposition of the plaintiff in error is that there was not sufficient evidence to go to the jury; and, as no exceptions were taken to the specific instructions of the court on this point, the plaintiff in error is limiled to that request. The by-law of The National Cordage Company was put in evidence, to the effect fuat the treasurer “should discharge the duties usually and customarily pertaining” to such office.

Aside from other witnesses, Benjamin (1 Clark, a witness for the plaintiff in the court below, first' qualified himself by allowing an apparently extensive experience, and, being asked what were the usual and customary duties of treasurers of cordage companies and manufacturing companies at New York, the habitat of The National Cordage Company, and the place of negotiation of the alleged contract in suit, testified that such treasurers buy and sell merchandise, sign contracts, and accept contracts, and enlarged upon this.

That this condition. of the proofs made an issue eminently proper for the jury this court cannot doubt The seventh and twelfth requests for instructions, and perhaps some other portions of the bill of exceptions, turn upon the claim of The National Cordage Company that the alleged contract in suit was not for the sale and delivery of hemp, but for the sale and delivery of certain contracts for hemp. The phraseology of the original paper of April o, 1880, is not clear on this point; hut doubt was removed by the additional paper ol!

April 8, Í890, which contains the following: “And it is agreed that the acceptance of contracts by the Pearson Cordage Company, if given,” and so on. .This shows that the party vendor had an option of giving contracts, which, of course, is inconsistent with any pretense that both parties were bound to give and receive them. There is no evidence in the ease that The National Cordage Company undertook to avail itself of the option, so that the contract stands as one for the purchase and sale of hemp.

The propositions made by the plaintiff in error touching some portions of the case which indicate that the Pearson Cordage Company preferred to acquire the original importer's contracts, also touching the circumstances of the parties, also touching the claim that, this addendum of April 9th was suggested by the Pearson Cordage Company, and assented to by the plaintiff in error solely for purposes aside from the point we are considering, are too remote to be applied by a court of common law in construing this or any other contract, whatever effect they might have in tribunals proceeding on broader or equitable principles.

Also the suggestions that the first paragraph of the paper of April 5th is to be construed in connection with the closing one, and that the former is in the form of a bill of parcels, to which the merchants who drew the paper were accustomed, do not meet the case, because the true color of the transaction in this particular comes from the addendum of April 9th.

The tenth request for instructions made by the plaintiff in error relates to a cargo of hemp by the ship Granite State, purchased by the Pearson Cordage Company May 5, 1890; and certain instructions of the court to the jury, to which exceptions were taken by the plaintiff in error, relate to the same cargo.

The request was, in substance, that if the Pearson Cordage Company, acting under the notice from The National Cordage Company that the contract would not be performed, bought this cargo as a substitute, the measure of damages would be the difference between the contract price and the price in fact paid for an equivalent proportion of the cargo; and the instructions on this topic excepted to were to the effect that purchases by the Pearson Cordage Company were immaterial, except so far as they might bear on questions of waiver, or upon the market value, and the court closed as follows: “You may consider the purchases by the Boston company [meaning the Pearson Cordage Company] upon the question of waiver, wherever you think they may bear, and upon the value of hemp, but not otherwise.” *As the exceptions to these instructions were taken in general terms, it is impossible for us to perceive precisely the grounds on which they were intended to rest; but, as they were not expressed specifically with reference to any point of time at which the purchase was made, we are forced to conclude that they are limited, and were intended to be limited, to substantially the same issue as that raised by the tenth request for instructions, and the observations relating thereto in the brief for the plaintiff in error, including the cases there cited, lead to the same conclusion.

We think, therefore, we dispose of both objections when we dispose of the tenth request. Without at all considering the proposition of law which this covers, or noting specifically its terms, it is sufficient to say that no evidence is shown us to which it is relevant, and therefore it would have been improper for the court to have complied -with it. The only evidence to which we are referred by the plaintiff in error is that of Benjamin C. Clark, one of the officer's of the Pearson Cordage Company, called out by the plaintiff in error on cross-examination.

He expressly denied the proposition of fact which the request assumes as its basis. Whatever inferences might be derived from the circumstances of the case if the plaintiff in error had furnished any affirmative proofs, they have no place where the pJainlilf in error was conten led to rest entirely oh negations called out In cross-examination of ¡lie witness of the opposing party. The parts of the record to which our attention Las been called did not furnish, sufficient evidence to go to the jury as a basis for the requested ins traction under consideration.

The remaining exceptions of live plaint']if in error group about the claim that, upon alleged undisputed facts, a paper, which, was inclosed by The National Cordage Company to the Pearson Cordage Company iu its letter of April 19, 1890, was retained by the Pearson Cordage Company without objection, and otherwise under sudi circumstances that the court was bound to instruct the jury that this paper superseded the alleged contract of April 5th, with ihe addendum of April 9th, or that by its retention The National Cordage Company was prevented from supplying itself with hemp, or making contracts for hemp, when the market was in condition for that purpose, and was thus prejudiced by the subsequent rise of prices; and that, therefore, the Pearson Cordage Gompany was estopped from maintaining Oils suit.

These two branches of this proposition resolve themselves into one, as it is impossible to conceive that the retention of the paper of April 19 th conld operate technically as an estoppel, or in any sense as such, unless its retention, and the circumstances under which it was retained, either as a matter of law or of fact, constituted an acceptance, so as to creíate a new contract which wholly or partially superseded the original one. The record does not appear to us to suslaiu the proposition of the plaintiff in error that the facts as claimed on this point by it were in any sense undisputed.

On the other hand, this entire branch of the case seems to us to be involved in a cloud of disputed allegations and controverted proofs, eminently proper for the jury under suitable instructions from the court. But it is not necessary to consider this at length, because the terms of the paper inclosed in the letter of April 19th. put it beyond doubt that none of the rulings or refusals to rule of which the plaintiff in error com plains could have been prejudicial to it.

It closes with ihe following words: “This contract is further subject to the proper execution by the Pearson Cordage Co. of their general contract with The National Cordage Co.” This seems to us in the nature of a. condition or provision precedent, and not of one subsequent; and it would be fairly understood to intend that the paper of April 19Ik was not to be held as executed until the general contract referred to was also executed. Jn other words, it seeuis to us to be ihe true construction of this closing paragraph that the two papéis were to take effect simultaneously, or not at all.

There is n.o claim in the case tiuil the general contract referred to was ever executed. The record throughout shows that the parlies never agreed upon its terms. Therefore the paper of April 19th never became effectual for any purpose. The court is unable to nee any error in the record, and the judgment of the court below is affirmed.

After the foregoing decision, plaintiff in error filed a petition foe a rehearing on the following grounds: “That the trae construction of said paper of April 19th Is that It Is to be treated as an amendment of the contract declared upon of April 5th-9th, and operates as if it had been added to or Incorporated into that contract, so that the words, ‘this contract is further subject to the proper execution by the Pearson Cordage Company of their general contract with The National Cordage Company’ wore not a condition precedent to the taking effect of said paper of April 19th, but became by the acceptance and adoption of that paper by the Pearson Cordage Company a condition of the performance of the whole contract; so that, unless such general contract were executed by the Pearson Cordage Company, neither could that company maintain an action against The National Cordage Company for nondelivery of hemp, nor could The National Cordage Company maintain an action against the Pearson Cordage Company for refusing to accept hemp.

In other words, that the execution by the petitioner of. said paper of April 19th, and its acceptance and adoption by the Pearson Cordage Company, incorporated it into the contract of sale, so that the contract between the parties then stood in brief as follows:

(1) A sale by the ijetitioner to the Pearson Cordage Company of eight thousand bales of hemp.

(2) A provision for the delivery of contracts for hemp instead of hemp.

(3) An agreement that changes of duty either way were for the Pearson Cordage Company, and that delivery of contracts instead of hemp should not change terms of sale or price.

(4) That, the Pearson Cordage Company having bought three thousand two hundred and four bales between April 9th and 19th, the amount to be sold and delivered is correspondingly reduced, and the whole contract of sale is subject to the proper execution by the.Pearson Cordage Company of their general contract with The National Cordage Company.” The petition for rehearing was denied, April 13, 1893. No opinion was filed.