Staackman, Horschitz & Co. v. Cary

Mr. Justice Baker

delivered the opinion of the court.

Plaintiffs, Staackman, Horschitz & Company, were dealers in linseed cake at Antwerp. Defendant Cary was a broker dealing in such cake at Chicago. He had made twenty or thirty sales of the cake to plaintiffs at a price “to cover cost, insurance and freight, shipping the same c. i. f. Antwerp. ’ ’ March 7,1913, defendant telegraphed plaintiffs in code: “Please make us firm offer P. W.” (prime western linseed cake) “cif Antwerp 500 T. March or first half April,” and telegraphed a similar request March 8th. March 13th plaintiffs at Antwerp telegraphed in code an offer to defendant in Chicago as follows: “Make you firm offer 1200 T. March or April cif Antwerp at Prs. 36. Crushers or bankers guaranteeing contract,” to which defendant replied March 14th by telegraph, also in code: “We accept your offer cif Antwerp 1200 T. March or April at Prs. 16. ” . These telegrams, together with a large number of other telegrams, forming the proposed contract, are set forth in the statement of claim. Defendant moved to strike the statement of claim from the files. His motion was denied, and he electing to stand by his motion, an order was entered defaulting him for failure to file an affidavit of merits. While the statement of claim is certainly not a model to be followed, we think it states a cause of action, and the court did not err in refusing to strike it from the files. The defendant having been defaulted, the only question submitted was the amount of plaintiffs’ damages. The word “firm” in the plaintiffs’ telegram means positive, and is used by both parties in other code telegrams in that sense.

The telegrams made a contract between the parties to be interpreted in the light of the usages of trade and the previous.telegrams between the parties. It is true that an offer must be accepted as made, for any modified acceptance is but a new offer and cannot be the basis of a contract until it in terms has been accepted unconditionally. The words “we accept” in defendant’s telegram of March 14th, followed by enough of the offer to identify it, was an acceptance of the offer in its entirety. The mere fact that the reduction of an informal agreement, oral or written, by a formal written one was contemplated or stipulated for, does not prevent the former from taking immediate effect. The question whether it does or not depends on what the parties intended. Scott v. Fowler, 227 Ill. 104,108; Stover v. Flack, 30 N. Y. 64.

If it he conceded that defendant might have insisted on a formal contract, it was competent for him to waive it, and his request by telegram of March 29th, “Owing floods railroads paralyzed; kindly extend contract April May,” was a recognition of his liability on a contract made by the telegrams of March 13th and 14th. It was for the court to determine as a question of law the place of delivery, and in case of a breach, what market should .be taken' in estimating plaintiff’s damages. A large part of defendant’s testimony and that of some of his witnesses consists of their views of the legal aspect of a c. i. f. contract; but such testimony was but testimony as to the law of the case and must be disregarded. There is a standard definition of that contract in the opinion of Blackburn, Justice, one of the judges called in by the House of Lords in Ireland v. Livingston, 5 Eng. & Irish Appeals, 395:

“The terms at a price to cover cost, freight and insurance, payment by acceptance on receiving shipping-documents, are very usual and are perfectly understood in practice. The invoice is made out debiting the consignee with the agreed price (or the actual cost and commission, with the premiums of insurance, and the freight, as the case may be), and giving him credit for the amount of the freight which he will have to pay to the ship owner on actual delivery, and for the balance a draft is drawn on the consignee which he is bound to accept (if the shipment be in conformity with his contract) on having handed to him the charter party, bill of lading and policy of insurance. Should the ship arrive with the goods on board he will have to pay the freight, which will make up the amount he has engaged to pay. Should the goods not be delivered in consequence of a peril of the sea, he is not. called on to pay the freight, and he will recover the amount of his interest in the goods under the policy. If the nondelivery is in consequence of some misconduct on the part of the master or mariners, not covered by the policy, he will recover it from the ship owner. In substance, therefore, the consignee pays, though in a different manner, the same price as if the goods had been bought and shipped to him in the ordinary way. ’ ’

This statement was adopted as a correct statement of the law in Benjamin on Sales (7th Ed.) 571.

The contention of appellant that in a c. i. f. contract the place of delivery is the point where the article sold was placed on shipboard, and that the market price at that place is to be taken in estimating damages in case of breach, cannot be sustained. The place of delivery, as has been said, was Antwerp, not the point on the American coast where the cake was to be placed on shipboard, and the defendant knew that the cake was intended for Antwerp. Stroms Bruks Aktie Bolag v. Hutchinson, L. R., A. C., 515; Sutherland on Damages (3rd Ed.) sec. 653.

' “If the vendor knows when.he makes his contract that the property is to be sold in another market his liability is measured by adding to the contract price at the agreed time and place of delivery the-cost of transporting the property to such market, less the price there at the time it would have reached its destination if there had been no breach.” Van Arsdale v. Rundel, 82 Ill. 63.

In Diorst v. Burton, 47 N. Y. 167, an action of fraud in the sale of cheese made at Frankfort, New York, and purchased there to be forwarded to and sold in New York, it was said, page 174:

“The place of delivery was Frankfort, but by the terms of the contract, New York was the market to which it was to be forwarded, and where it was to be sold, and the market price there may be regarded as within the contemplation of the parties.”

To the same effect are: Boyd v. L. H. Quinn Co., 17 Misc. (N. Y.) 278; Wallingford v. Kaiser, 191 N. Y. 392; Cockburn v. Ashland Lumber Co., 54 Wis. 619; Louis Cook Mfg. Co. v. Randall & Dickey, 62 Iowa 244.

The contention that plaintiff was entitled to nominal damages only because the market price at Antwerp on April 30th of cake to arrive May 14th was not shown, is without merit. A vessel sailing from the American Atlantic seaboard April 30th would arrive in Antwerp May 14th, and plaintiff had the right to wait until that time, holding the contract as prospectively binding. Roehm v. Horst, 178 U. S. 1; Long v. Conklin, 75 Ill. 32.

Conceding the plaintiff was entitled to the benefit of the market price at Antwerp on May 14th, the proof is ample to support the award of damages.

The finding of the Municipal Court is correct and the judgment is affirmed,

Affirmed.