EL DORADO OIL WORKS CO. v. SOCIÉTÉ COMMERCIALE DE L'OCEANIE, 182 F. 195

GILBERT, Circuit Judge (after stating the facts as above). Error is assigned to the instructions given by the court as to the meaning and purport of the contract, and to refusals to instruct as requested by the plaintiff in error. .It is unnecessary to set out in detail the instructions so given and requested. They all raise the question of the correct construction of the contract. In brief, it is the contention of the plaintiff in error that the

article tendered by the defendant in error was not the very

article itself which was purchased. By this it is not meant that it was not a full cargo of Tahiti copra of fair average quality, tale quale, delivered on the quay in San Francisco per brig Lurline, but that it was not the

article purchased, for the reason that it was not a cargo brought directly from Papeete as warranted in the contract, but was a cargo brought by a voyage which was an unauthorized deviation from the return voyage, which was described in the contract. This leads us to the question of the construction of the contract. Certain of its features are made so clear as to be beyond controversy.

One is that the brig was warranted, at the time when the contract was made, to be en route from Puget Sound to Taiohae ana/°r Papeete, and that such was her outward voyage, and that on that voyage she was permitted to visit Taiohae or Papeete or both.

But the plaintiff in error contends that, while the contract permitted the brig to visit either or both ports, it required her to visit them in the order in which they were named, and did not permit her to return to Taiohae after having once touched there on the way to Papeete, and that her return voyage should have been from the last-named port to San Francisco, and that she would so return without deviation was a warranty necessarily and legally implied in the terms of the contract. But the contract, as we read it, does not describe the return voyage, nor does it specifically name a port or ports of loading.

It simply provides that the defendant in error shall deliver a cargo of Tahiti copra of fair average quality on the quay in San Francisco per brig Lurline, described to be “now en route from Puget Sound to Taiohae an3/or Papeete.” It is silent as to where the cargo was to be obtained, or as to what the return route should be.

But the plaintiff in error, in support of its contention that, by virtue of the deviation of the brig in visiting Taiohae the second time, the cargo offered was not the cargo contracted for, cites cases which hold that the goods offered must be identical with those bargained for, cases such as Ellis v. Thompson, 3 M. & W. 452, Filley v. Pope, 115 U. S. 313, 6 Sup. Ct. 19, 29 L. Ed. 372, Norrington v. Wright, 115 U. S. 188, 6 Sup. Ct. 12, 29 L. Ed. 366, and Bowes v. Shand, 2 App. Cases, 455. In Ellis v.

Thompson the purport of the decision was that goods which at the date of the contract were to be loaded on barges, and 'carried thereby from Shrewsbury to Gloucester, were not the identical goods contracted for, and described as ready for shipment at Gloucester or Liverpool ón that day. In Filley v.

Pope the contract was for the sale of pig iron, “shipped from Glasgow.” The court held it was not fulfilled by tendering pig iron shipped from Leith, and that in a mercantile contract a statement descriptive of the subject-matter or of some material incident, such as the time or place of shipment, is ordinarily to be regarded as a warranty or condition precedent. In Norrington v. Wright the contract was for the sale and purchase of iron rails, to be shipped from a European port or ports to Philadelphia, at the rate of about 1,000 tons per month, beginning at a fixed date.

The court held that the warranty was not fulfilled by the delivery of monthly shipments of quantities very materially less than those contracted for. In Bowes v. Shand it was held that a contract to sell rice, to be shipped during the months of March and April, is not fulfilled by tendering rice shipped in February. The Lord Chancellor said: “If the description of the

article tendered is different in any respect, it is not the

article bargained for.” And he alluded to the fact that the contract was mercantile, and that merchants are not in the habit of placing in their contracts stipulations to which they do not attach some value and importance, and to the further fact that when making contracts for the purchase of rice they may well be desirous that the rice should not be forthcoming to them at a time either earlier or later than that at which it suits them to be ready with funds for payment. But what is there in the case at bar to show that the cargo tendered was different in any respect from that which was bargained for?

The parties had not bargained for a cargo to be shipped from Papeete, or from any other named port, to San Francisco; nor had they bargained for a cargo to be loaded at any particular time or place, or to be delivered at any particular time.

They had bargained for a full cargo of Tahiti copra to be delivered on the quay at San Francisco, and had contracted that it should be brought by the Durline, described in the contract to be a “brig en route from Puget Sound to Taiohae and/or Papeete.” If the contract had stipulated that the cargo should be taken on board at Taiohae or Papeete, and that the return voyage should be from either of those ports directly to San Francisco, a different case would be presented. But the parties saw fit to incorporate no such provision in the contract.

The only contingency expressed in the contract, upon the happening of which the contract was to be held void, was the loss of the vessel, and the contract expressly permitted a transshipment of the cargo to one or more vessels.

The fact that the contract was silent concerning the time of the delivery of the cargo at San Francisco gives rise to the inference that the cargo was to be delivered within a reasonable time, and the fact that it was silent concerning the place or manner of loading creates the inference that the parties understood that the vessel was to be loaded according to the customs and usage of the ports of trade.

There was evidence of such customs and usage, showing that as a general thing the ports at which sailing boats touch are hard to reach by mail, that a cargo is not always available, that sometimes the cargo is picked up at several ports, and that it is not always possible that a cargo shall be ready. There was evidence that a vessel leaving the coast in October with an outward cargo to be discharged in the islands, thereafter to load a cargo of Tahiti copra wherever she could find it and return to San Francisco, might reasonably be expected to occupy four months on the entire voyage.

The instructions of the court properly submitted the question of a reasonable time to the decision of the jury. ... ... The trial court ruled that the communications which passed between the parties prior to the signing of the contract could be admitted for the purpose of indicating to the jury what should be taken to be a reasonable time for the performance of the contract, but that they could not be taken to contradict the contract; and the court instructed the jury that the communications might be considered on the point of reasonable time.

In one of those communications the plaintiff in error stated that the Durline was expected to be dispatched from Papeete to San Francisco “some time this fall, and we look for her arrival in San Francisco on or about December 15th.” In another the statement was made that the Lurline had left the sound on October 5th, bound for Papeete, “and we figure that she should reach San Francisco on her return voyage about December 16, 1907.” It is now insisted that those communications were admissible in evidence to make clear the meaning of the terms of the contract.

But, as we read the contract, we do not find that it' is ambiguous or uncertain. It is presumed to express the full intention and agreement of the parties. If so, all prior negotiations were inadmissible to alter it. In Seitz v. Brewers’ Refrigerating Co., 141 U. S. 517, 12 Sup. Ct. 46, 35 L.

Ed. 837, the court held that, when the writing itself upon its face is couched in such terms as to import a complete legal obligation without any uncertainty as to the object or extent of the engagement, it is conclusively presumed that the whole engagement of the parties and the extent and manner of their undertaking were reduced to writing, and that silence on a point that might have been embodied in the agreement does not open the door to parol evidence in that regard. The plaintiff in error cites the case of Davison v. Von Lingen, 113 U. S. 40, 5 Sup. Ct. 346, 28 L. Ed. 885.

In that case a charter party made on the 1st of August in Philadelphia contained the stipulation that the vessel is “now sailed or about to sail from Benizaf with cargo for Philadelphia”; whereas the fact was that the steamer was in Morocco, only three-elevenths loaded, and did not sail for Philadelphia until August 7th, and left Gibraltar August 9th. Before signing the charter party, the charterers had asked to have in it a guaranty that the steamer would reach Philadelphia in time to load a cargo for Europe in August, but this was refused.

They had declined to have inserted the words “sailed from or loading at Benizaf.” On learning the date when the vessel left Gilbraltar, they proceeded to look for another vessel. The steamer was not unloaded at Philadelphia until September 7th. The charterers repudiated the contract. The court held that the stipulation “now sailed or about to sail,” etc., was a warranty or a condition precedent, that time and the situation of the vessel were material and essential parts of the contract, and that the charterers had the right to repudiate the contract.

The court said that the words “now sailed or about to sail with cargo” meant that she must have had her cargo on board and was ready to sail, and remarked that that construction was in harmony with all that occurred between the parties at the time and with the conduct of the charterers afterwards. It was not a case in which testimony was admitted to alter or vary the terms of a contract, and no such question is discussed in the opinion. So in Pacific Coast Co. v. Yukon Transportation Co., 155 Fed. 29, 83 C. C. A. 625, decided by this court.

Evidence of a prior parol agreement was referred to as tending to support the natural meaning of the bills of lading; but the court found no error in the admission of the parol agreement, principally upon the ground that the bills of lading were issued after the goods had been delivered on board the vessel, and after they had passed from the control of the shipper, and were not assented to, and hence could not have the force to set aside the prior parol agreement. We find no error in the exclusion of evidence of prior communications to alter or explain the contract. The decree is affirmed.