Mitsubishi Goshi Kaisha v. J. Aron & Co. , 16 F.2d 185 ( 1926 )

16 F.2d 185 (1926)

MITSUBISHI GOSHI KAISHA
v.
J. ARON & CO., Inc.

No. 93.

Circuit Court of Appeals, Second Circuit.

December 6, 1926.

Murrey Corrington and Bouvier & Beale, all of New York City, for plaintiff in error.

Kirlin, Woolsey, Campbell, Hickox & Keating, of New York City (Cletus Keating and James H. Herbert, both of New York City, of counsel), for defendant in error.

Before HOUGH, MANTON, and HAND, Circuit Judges.

HAND, Circuit Judge (after stating the facts as above).

The buyer promised to pay only "against shipping documents," which were to be "f. o. b. seller's tank cars, Pacific Coast." This required the tender of a bill of lading acknowledging delivery to a common carrier at some point selected by the buyer on the Pacific Coast, in this instance Seattle. Nothing but such a bill of lading was a performance of the condition upon that promise. Filley v. Pope, 115 U.S. 213, 6 S. Ct. 19, 29 L. Ed. 372; National Bank of Commerce v. Lamborn, 2 F.(2d) 23, 36 A. L. R. 509 (C. C. A. 4).

There is no room in commercial contracts for the doctrine of substantial performance. Bowers v. Shand, L. R. 2 App. Cas. 455. All the seller ever tendered was a bill of lading, Dallas to East Rochester, which was clearly not "f. o. b. * * * Pacific Coast." Although the car in fact came from Seattle, it was uncertain from the bill of lading whether it was the substantial equivalent of a shipment direct from Seattle to East Rochester, even if that had been sufficient.

From the correspondence the parties appear to have agreed that there was a difference between "diversion" and "reconsignment," and from what we are told at the bar this difference concerns the freight charges. However, that makes no difference, nor do the facts, as distinguished from the documents. The buyer would have been within his rights in standing upon the letter of the contract, which required a bill of lading of the kind agreed, no matter what were the facts. Any other rule would subject the parties to obligations dependent upon circumstances which they must ascertain outside the documents tendered, which they had made the measure of their undertakings.

We do not forget that the buyer offered to accept the Dallas bill of lading as a substitute; but this was only upon condition, reasonable enough, if that were relevant, that he should be satisfied by the seller's "supplier" that the car had been "diverted." However, as the seller on his own admission never secured the "necessary information" from his "supplier," the buyer's substituted condition was never performed, and his new promise never became absolute.

The buyer's action against the Pierce Company was irrelevant. Before September the seller had tendered all that he proposed to tender, and the buyer had refused. Nothing which the buyer said in the bill of particulars in his action against Pierce can be construed as an exercise of dominion over the car at that time, and no amount of inconsistency, or, for that matter, of unfair dealing towards a third party, could affect his position here. The seller also seeks to treat the buyer's letter of August 2d to the Pierce Company as the exercise of dominion over the car. However, the letter said no more than that the seller had advised him that the car in suit, among others, had been applied to the Pierce account, and that he was awaiting the documents, which he would present in due course. This was not a tender of the car upon the buyer's contract with the Pierce Company, and was certainly not intended to be an assertion of any dominion over it. At that time the buyer had reasonable expectation that the seller might comply with the condition which he had imposed upon acceptance in his letter of July 26th; i. e., that he should have "full diversion privileges," which on the 28th the seller had agreed to do his best to get. The inclusion of the car among those mentioned in the letter of August 2d was justified by the possibility so held out, and it would be a wholly unwarranted inference to read it as indicating any retreat from the buyer's position, taken at once, and consistently maintained throughout the correspondence.

Judgment affirmed.