443
tions does not rUn, (Hanger v· .Abbott,6 Wall. 532,) and II fcrl:iori it does not run in a country which never had either a statute or courts. It is not claimed that the demand is barred or presumed to be satisfied by lapse oftime at Common law. The condition of affairs iii that country before congress passed the act creating a court was bad enough. Those having just claims and demands against persons in the te.rritory were remediless. They could have no redress in the courts, because there were nODe. It was never supposed that, while they were thus denied any tribunal in which they could assert th.eir demands, the· ·statute of limitations of the territory of Missouri was running against them. There was no statute of limitations in force in the territory until congress, on the 2d day of May, 1890, put in force therein the statute of limitations of the state of Arkansas, and that statute had no retrospective operation, and for that reason, doubtless, it was not pleaded. There is no error in the judgment of the court below t and it is therefore affirmed.
GOULDING
et az'
fl. HAMMOND
aI.
(Clrcu(t Coun, B. D. GWfQ1.a, E. D. January 91, 1m) OoJlTlU.O'l'll-CoNSTRUCTIOIf-MODD'IOJ.TION.
Plainti1fs having the option to require delivery any time durinlf June-Beptember ofa cargo of phosphate rock sold by defendants, on August 21st wired defendants to "please extend time for delivery of rock until Nov. 1st, "and defendants replied: "Can't you make it Dec. delivery1 This preferred to Nov." Plalntifls acknowledged the reply, saying it had been communicated to the Dublin oftice, and their reply would be given aefendants as soon as received. Defendants at the same time wrote plaintiffs, quoting their teiegram, and stating: "Of course It Is understood that we will make the delivery in Nov., yet we trust, as stated, you will have it In Dec." Held. th"t defendants were entitled to conclude that plaintifls asked for a delivery on November 1st, and not an extension of the option; and their acceptance of the change In the tennsol the contract, with the letter showing their understanding of plaintiffs' request, to which plaintiffs did not reply. made a com· pleted contract under Code Ga. S 2756, providing that, where the intentions of the parties differ, the meaning placed on the contract by one. and known to be thus iDisunderstood by the other at the time, shall be held to be the true meaning.
At Law. Action by W. &; H. Y. Goulding against Hammond Hull & Company for breach of contract. Motion to direct verdict for defendants. Granted. Charlton « MackaU, for plaintiffs. Denmark, .Adams ere Adams and Erwin, flu Bigncm &:- OhiBholm, for defendants. SPEER, District Judge. The plaintiffs have brought their action to recover damages for a breach of the following contract:
"SAVANNAH, GA., 28 May, 1889. "Sold to Messrs. W. & H. M. Goulding (T. V. Kessler, Agent) of Dublin, Ireland. for account of Messrs. Hammond, Hull &; Co., a steamer cargo of kiln-dl'ied river phosphate rock, as follows: .
J!'EDERAL BEPORnR,' vol.
49.
"Quan,etg: twenty to twenty-five bundred tonll, of 2,240 lbll. each, more or less· . Six dollars. per ton of 2,240 Ibs., delivered along-stde buyers' steamer ,at sellers' wharf, Battery creek, nesr Port Royal, S. C. '''Analllsi8: Guaranteed fifty-five (55) percent. of bone phosphate of lime of Prof. C. U. Shepard, of Charleston, S. C. "iJJeZi'Oery: Any time during June, July, August. and or September, 1889, at buyers' :option., "Terms fJ! Payment: Cash against doctlments on presentation at Balti. more, lid., or Londoll, England, buyers' option. " ' '" "Oonditions: SwoI;n weigher's weights and sampling at point of shipment. Due notice of charter to be given sellers soon 8S charter is made. Sellersto have 'privilege of stevedoring cargo at usual rate fOl' such work. "Brokerage: Payable by sellers on completion of contract .at usual rate per to,D., , .. 'fSigned] J. M. LANG & Co., Br,Plters. "A{lcepte4. Signed] HAMMOND, HULL &; Co. "Pe,r H. P. RICHMOND, Atty." To which the following was added on May Slst, at the instance of, Hammond, Hull & Co.: "steamer always afloat." The phosphate provided for, to which the contract refers, was not delivered in accordance with the clause of the cont,ract upon which the ' ',' controversy has beEm occasioned, to-wit: "Delivery:( Any time d\lring June, July, August, and or September, 1889, at buyers' option.'" defendants are, respectively, of highbusines9 reputation,. and it appears from all the evidence that the action has resultedfl'Q.m an honest di,fference with the reference to the obligations of the parties. The material evidence is all in the telegraphic and written corrElspcmd'ence, ,and the motion necessarily submits to the court for its instruction the contract thus evidenced. There .is no ambiguity whatever as to the meaning of the original contract; the plaintiffs have the option of directing the delivery of the bone phosphate at time during the months specified. It is in evidence that the plaintiffs had great difficulty in chartering a steamer. The 21st of August had arrived. Oli that day they sent, and the defendants received, ,the foll,owing telegraI;u: HammoruJ" Hull &0 00.: Please extend time for delivery of rock until November first. Telegraph reply. W; &; H. M. GOULDING." "[Sgd.] The defenqants replied. immediately: &. H. M. Goulding, Baltimore, Md.: Can't you make it December delivery? This preferred to November. , lIAMMOND, HULL &; Co." The plaIntiffs' agent received the reply, and acknowledged it with thanks, stating "it had been cabled to our Dublin office," "and as soon as I receive their reply, will advise you." On the same date Hammond, Hull & Co. wrote the plaintiffs, quoting their telegram, asking that it }), made December delivery, and stating fllrther:
"w:
".We prefer .December to November, and trust it may be your pleasure to make it thereby making the transaction agreeable to all interested. Of course. it Is understood that we will make the delivery in November. yet we as stated, you will have it in December." This concluded the correspondence of the 21st of August, the day ",hen the .change in the contract was first suggested by the plaintiffs. From this it appears that whatever may have been the purpose of the plaintiffs in the use of the language "extend the time for delivery until November the first," Hammond, Hull & Co. construed it to be a request to extend the actual delivery until November 1st, and at one,e assented, as ,appeared by, their letter of that date we have just read.'I.'h,e. letter was written on the 21st, and the acceptance took effect imin'ediately when it was sent. Code Ga. § 2728. If the proposition lsmade by letter, the acceptance by written reply takes effect from the'tiqie it is sent, and ndt from the time it is received; hence the proposer cannot withdraw in the' mean tim,e. If the letter contains alternative propositions, the party receiving may elect. See Add. Cont. par. 22; Langd. Cas. Cant. par. 4 et 8eq.; Deshon v. Fosdick, 1 Woods, 286. Contract is held to be complete on delivery of letter in post-office. Bryant v. Boou, 55 Ga. 448. But the telegram of the defendants of the 21st also conveyed to the plaintiffs that it was understood that a November' delivery was asked for "Can't you make it December deliverY?" they telegraphed. "This is preferred to Noverrlber." The irilport of this manifestly is that a December delivery is preferred to a November delivery.' It also appears from a certificate from the Beaufort Phosphate Company that on the 21st of August the defendants requested the company the time of delivery of2,000 or 2,000 tons of phosphate rOCK from September to November delivery, possibly to December delivery. This certificate was inclosed to the plaintiffs, and is evidence; along with the other correspondence. It is therefore clear that the defendants understood that the delivery asked for by the plaintiffs was on November 1st, and necessarily, from the nature of the cargo, for such other time as was necessary to load. 'I.'he plaintiffs insist, however, that this was not a proper construction of their request. They merely asked, they insist, for an extension of the buyers' optioll until November 1st; and it may be, and indeed it is fair to conclude, that this is all the plaintiffs' agent intended. .But the construction which the defendants placed upon the contract could not have been misunderstood by the plaintiffs. That the defendants did not regard the plaintiffs' telegram of the·21stas a demand for an extension of the option is now clear, and it seems equally clear that the plaintiffs perceived that the defendants, while agreeing to a November, preferred a December, delivery, and did not propose the option of November, with a preference for an additional extension of the same to December. If it were otherwise, why 'Should the plaintiffs delay acceptance, and cable the Dublin house for its assent? ·. Why was this' necessary for a mere extension of thebuyers' option?, . . It gave them greater latitude, with no possibility of injury. . The letter containing this statement by the plaintiffs was written on 21st
the' a'efendants and their attention to their. rqisc'onstmction of the plaintiffs' request. The law upon this subject is wen expressed bysee.. tiOD 2756 of the CodErGf Georgia: '" . ."The intention of ttiepartiesmaydUfer among themselves. .In such case the meaning placed on the contract by one party, and known to be thus understQod by the other party at the time, shall be held as the true meaning." . we be the general law of contractS. See, also, (Jarrillqnv. U. 8., 7' Walt view of the question is, in our opinion, strengthened by the When Goulding.&.eo.sent thenrst telegram of the 21st of August, they proposed a choJ;lgein thecontract,-a contract Which was itself without ambiguity, and undersf\OQ4. The telegram was not an inquiry, as stated in oneof their letters, but it was aU ,earnest solicitation for a change of the cot;l,tract. Then they were under a peculiar 'obligation to correct instantly, by the most expeditious method, any misapprehension of their proposal which the defendants had given. With such conditions, to comply with the original contract, superinduced by the plaintiffs' original telegram by a of the same wbich it was the duty of the plaintiffs to correct', cannot, in our opinion, be a cause ofaction. The is, howev.(ll', by no means free from difficulty, and itS determination in this manner, upon a motion tl) direct a verdict, agreeing tbat the decision must finally depend counsel, on both upon the construction of the written evidence,will enable the plaintiffs readily and speedily to have their rights again which I trust may be done. At present, however, we feel obUsed to direct & the defendants.
tpe plaintiffs, and Jtwas'the duty
.. Then
Of the
known to
can .
UNITED STATJi25 fl. DURWOOD. (DCetrict Court, D. Washington, W. D. ll'ebl'U1U'7 10, 189J.) 1. CtJll'f01[!1 Dlrrms-VrOliTI01l' OJ' LAWS-BREAKING OPEN BONDED
a Sum.
One who maliCiousl,. breaks inw a bonded freight-car, containing marchanllin in transit through the United States between two places in the British provinces, I.e not puniSh,able under Rev. St. U. S. 5 2998. That section Is applicable only to cars en TOttte between certain named ports of entry In the United States and cer. taln other places in the United States.
CA.u.
As Act Congo July 28, 1866, (Rev. St. S 8005,> authorizing transportation of merchandise in bond through the United States to places in the adjacent British provinces, prescribes no penaltiell, no criminal prosecution can be founded upon it tor brelloking open a car in transit. .
At Law·. Prosecution of James Durwood for breaking open and entering a bonded freight.car on the Northern Pacifio Railroad. Jury in.:. structed to return a verdict of not guilty.