Gilpins v. Consequa , 3 Wash. C. C. 184 ( 1813 )

WASHINGTON, Circuit Justice

(charging jury). The contract, upon which this action is founded, obliges the defendant to deliver to the plaintiffs’ supercargo, a certain quantity of teas, of different kinds, at stipulated prices; the same to be fresh, prime, and of the first chop, to their entire satisfaction. The time meaning of the words “prime,” “first chop” (the latter of which seems to have been imported from the East into the mercantile language of this country), of course is familiar to a jury of merchants, and can be better understood by them, than by the court. This being done, it is then admitted by the defendant's counsel, that Consequa was bound to deliver teas of the described quality; but they contend, first, that if the supercargoes were satisfied (which they expressed themselves in their letters to the plaintiffs to be, by stating that the cargo was composed of teas of the first quality) that the plaintiffs cannot afterwards object to the quality, in an action upon the contract; secondly, that these words as descriptive of the quality, should be construed in reference to the season of the year, and the state of the market. The court cannot sanction either of these arguments. As to the first, it is most obvious, from the usage of tiiis trade at Canton, as given in evidence, the purchaser never examines all the teas, with which he is to be furnished, and seldom more than the muster chest, which is sent to him for that purpose; relying upon one of the Hong merchants, that the quality of the entire parcel of each denomination, will correspond with the sample sent. Besides, if the satisfaction, of the purchaser, either expressed or implied, can dispense with the necessity of the tea answering the quality stipulated in the contract; his dissatisfaction, however capricious and unreasonable. might prevent the seller from fulfilling his contract. The real meaning of the contract is, that the teas shall be of the agreed quality, such as the purchaser ought upon examination to be satisfied with. The declarations of the supercargoes, that the cargo was of the first quality, made as they were in this case, without examination; could only have been upon the faith of the contract, and the honour and judgment of the defendant. Second, the quality of the teas, engaged to be delivered, should certainly be considered in reference to the general market of Canton, so as to preclude a construction which would compel the defendant to deliver teas, not usually brought there for exportation. But, if the advanced season of the market, should be admitted to control the general and -strong expressions of the contract, it would be difficult to know where to stop; such a construction might sanction the delivery of inferior teas, in the face of a contract, which stipulates for those of prime quality. The defendant ought to have known, whether from this or any other circumstance, he could or could not comply strictly, with his engagements; and, consequently, he-ought, in the latter case, to have qualified the expressions used. The true meaning of the contract being ascertained, the next question is, whether it has been broken?

There were two modes by which the quality of these teas could be tested: Examina-, tion by competent judges, and comparison of the prices given for these teas, by persons after- examination with other teas, of the same denomination, sold at the same time, and under the same circumstances. The plaintiffs rely upon the latter, and generally speaking it may furnish a tolerably just criterion of value, though not always to be relied upon. That sales at auction, are not always a decided test of quality, common experience has proved. It sometimes happens, that a difference takes place where the quality is precisely the same, arising from the various motives which actuate those who bid. If the age of the tea contributes to its deterioration, that would be another reason, why the comparison might not be infallible. In this case, as the first sale at Amsterdam was one and a half, and the second two and a half years after they were purchased; whether the teas in question were affected in quality by this cause, by sea injury or otherwise, you must decide.

The defendant however contends, that the sales at Philadelphia, ought to be considered as conclusive of the quality of these teas; and certainly this argument is entitled to the serious consideration of the jury. ,The unexceptionable quality of one sixth of the cargo, taken out indiscriminately from the whole, and sold; and of course examined and approved of by the different purchasers; affords strong evidence of the good quality of the whole cargo, before it left Philadelphia; and if you should be of this opinion, the case is clearly in favour of the defendant.

But if you should prefer the test contended •for by the plaintiffs, then another question arises: — Ought the sales of these teas, to be compared with those of the highest sales of other teas, of correspondent denominations, or with the average of those sales? The plaintiffs contend for the former, and the defendant for the latter. The court is of opinion that both are wrong. The plaintiffs are so, unless they first prove that the comparison of one thing to another, by auction prices, is an unvarying test of quality, which it certainly is not. The defendant’s rule is also wrong; because it would result, in comparing teas which ought to be of the first quality, with those of inferior teas, so far as inferior teas compose the quantity from which the average is taken; and such teas must necessarily form a part of the average, if price be the test of quality. Some rule between these extremes may be more likely to meet the justice of the case, which the jury may probably devise.

Supposing that the jury shall have settled all these points to their satisfaction, that is, that this contract has been fulfilled as proved by the sales at Philadephia, or.not fulfilled, as proved by the Amsterdam sales; and in this latter case, that the teas in question ought to be compared with the highest sales or with the average price, or with some price between these extremes; the important question remains, What -ought to be the rule by which damages should be assessed? The plaintiffs claim the difference between the prices of their teas, and the highest sales of other teas, at the same time. Besides the objection to this mode before noticed, there is another, which is, that this would be to subject the defendant to the casualties of a foreign market, with which he has nothing to do. The decisions upon this point in cases of insurance, have a strong bearing on the question. In those eases the insured, if the foreign market be high, may with at least a semblance of reason say to the underwriter, “You promised to indemnify me against all loss arising from certain risks in this voyage, and my loss is precisely the amount for which the cargo would have sold, had it arrived safe;” and the underwriter might use the same language, in case the market was low. Yet the decisions are, that the underwriter is not to be governed by the foreign market. But in this case, the contract of the defendant was merely to deliver, at Canton, teas of a certain quality. It was nothing to him what the plaintiffs did with them, at what market, or at what time they might choose to sell them. It would be most unreasonable, to hold the defendant bound to make up losses, which might arise out of the speculations or miscalculations of the plaintiffs, to which he was not privy and in no respect consented. If a man contract to deliver a quantity of flour, for instance, by a particular day, and fails; or deliver it of a quality inferior to that stipulated for; all that can be claimed from him in the first case, is the. price of such flour, at the time and place when and where it was to have been delivered; or in the second, to make up the difference in the quality. He would never be permitted to resort to a foreign market, to' which he might have carried it, to fix the standard of his loss. Upon this principle therefore, the jury will consider the sales at Amsterdam, and the comparison of them with those of other teas, not as furnishing the amount but the rate of loss; — and having ascertained that, whether it be five, or be ten, or any other rate per cent.; then to apply that rate to the prices of the same articles of first quality at Canton, when these teas were delivered; of which, in the absence of other evidence, the prices agreed upon in this contract may be taken. The result of this operation will furnish the proper rule of damages, should you give any.

The claim of the plaintiffs, for the supposed loss of what they might have gained by the difference of exchange, upon the amount to which you may think them entitled, is too extravagant to be treated seriously. They might as well claim all the profit, which might have been made by investing that money in a cargo of goods in England, and then selling them in the United States, and so on. As to interest, this is a question generally in the discretion of a jury. But it is not agreeable to legal principles, to allow interest on unliquidated and contested claims, sounding so much in damages.

The jury found a verdict for five thousand five hundred and fifty-six dollars: the claim of the plaintiffs was upwards of twenty-two thousand dollars.