FISHER 11. NEW ARK CITY ICE CO.
569
payment. But in Horter v. City of Philadelphia, in Dickinson v. City of Philadelphia, and in the case now before this court the promise was not to pay in obligations of the defendant, but ill claims against others., the collection of which was to be at the risk of the plaintiff, without recourse to the defendant. In Hitchcock v. Galveston, the debt was the defendant's, and the only question was as to the manner of payment. In this case the plainly-expressed agl'Pement is that the contractor shall look to the abutting properties, and to them By itB terms he is bound, and no consideration of the supposed hardship to result from maintaining them would justify any attempt on the part of this court to defeat their legal effect. As was said by the supreme court in Peake v. New Orleans, 139 U. S. 361, 11 Sup. Ct. 541: ''We trust that this court will never falter in its duty of. brushing away all false pretenses, and holding every municipality obedient to the spirit, as well as the letter, of all its contract obligations. At the same time, it is equally the duty of this court, as of all others, to see to it that no burden is cast upon taxpayers, citizens of a municipality, which does not spring from that which is justly and. equitably a debt of the municipality; and, when a contract for local improvements is entered into, the contractor must look to the special assessments, and to them alone, for his compensation, and if they fail, without dereliction or wrong on the part of the City, neither justice nor equity will tolerate that it be charged as debtor therefor." The demurrer is sustained, and judgment for the defendant.
FISHER v. NEWARK CITY ICE CO. (Circuit Court of Appeals, Third Circuit. No.8.
April 21, 1894.)
1.
CONTRAOT OF SALE-INTERPRETATION.
A contract provided that plaintiff should cut, house, and deliver on board defendant's vessels 15,000 tons of ice during the months of June, July, August, and September, at $1.60 per ton; to be paid for as follows: $3.750 on signing the contract; an equal amount the following March, if threefourths of the whole was then stored in specified houses; 75 cents ton additional as the ice was delivered until the amount advanced Wll,S exhausted; and thereafter $1.60 a ton,-the ice to become defendant's property when cut, provided, however, that plaintiff should have a right "to make up the quantity to be delivered as aforesaid by purchase or otherwise," indemnifying defendant for any additional expense occasioned thereby. Held, that plaintUr was bound to store in his own houses threefourths of the entire amount as security for the advances, but that any ice purchased under the proviso need not be stored in his own houses, but might be delivered elsewhere, plaintiff paying any additional expense thereby caused. . The measure of damages for breach of contract where there had been ft part payment and partial delivery held to be not the balance of the purchase money, but only the profit the seller would have made if the delivery had been completed.
I. S.B1E-DAMAGES FOR BREACH.
57(f
FE:DEltALREMRT.ER,'
vol. 62. '
This' was an action by Fred. S. Fisher against the Newark City Ice Company to recover damages for breach oLa contract. The case was tried to the courtLwithout a jury, and judgment rendered for defendant;: Plaintiff sued out this writ of error. ' court made the following findings of fact: (1) The plaintiff and the defendant entered into and executed a contract dated FebhIary 13, l8OO, for the sale and delivery of 15;000 tons of ice by the plaintiff ,to defendant, whIch contract Is made part of the declaration In this cause. , . (2) iJl Jlursuance of the terms of thILt contract the defepdant paid to the plaintil!o,h the <iay aforesaid $3,750, part of 'the thereof. (3) The 'subject-matter of this contract was the delivery ;)i 15,000 tons of ice by the Plltintiff, to the def'ndant at a'certaln fixed price per ton. Such ice, previous ,to delivery, WIl,S to be, stored,iJl certaiJl then erected, or tobe erected, and In 8llid c9ptract partIcularly stated. In said contract there was this J1foviso: "Provided, however, said Fred. S., Fisher shall have the right to make up the' quaritity to be tleliveredas aforesaid by pmchase orotherwiSe, indemnifying the said Newark City Ice Company fo-r any additional expense they may be put ;to;,' , , (4) The ice whIch was the subject of the sale, and was to be delivered pmsuant to the terms of the coJltract, was, to be cut from the Kennebecasis river, in front of certain lands leased or controlled by the plaintiff, and was, by the terms of the contract, to be stored in the building then in course of erection or to be erected by the 8llid plaintiff upon lands ownoo, by the said plainsituated on the Kennebecasis river, in the parish of Rothesay, and county of Kings, being the same land. which the plaintiff had previously . ' bought from one Susanna Ricks. (5) By the terms of the contract, or ofa supplemental contract, hereafterreferred to, the said plaintiff was permitted to store a certain portion of said ice, if necessary, in a building to be erected upon lands leased by him from the Wetmore estate in the immedIate neighborhood of the other ice house, or in aJlY other building tc> be approved by the defendant. At the time that said contract was made. the plaintiff was engaged in cutting ice at the places named. . . . (6) Afterwards, on the 7th day.of April, 1890, a certaIn supplemental contract was entered into between the plaintil'e and the defendant, which is attached to the declaration, and forms a· part thereof. This contract, under the view I take of the case, is of no special consequence. (7) The ice in question was to be delivered to the defendants during the months of June, July, August, alid September of that year; such delivery was to be made "free on:board" certaIn vessels suitably and properly dunllaged for a voyage from the place of delivery to Newark, which vessels were to be .furnished by the defendant. (8) The defendant did send to the place of delivery, to wit, the ice houses heretofore spoken of, vessels upon which, at intervals, the plaintiff did deliver the Ice in question up to about September .10, 1890. (9) On or about that day it came to the knowledge of the defendant's agents that practically all the ice stored in the ice houses referred to had been dellv,ered; the quantity remaining beingvanously estimated by the different parties, but admittedly less than a cargo. (10) The plaintiff in fact, stored 11,250 tons of the ice which was to be delivered in thebuJlding mentioned in the contract. (11). On September 10j 1890, the agent of the defendant served upon the plaintiff personally a notice, of which the following is a copy: "St. Johns, N. B., 10 Sept., 1890. "Frederick Fisher, .Esq., City-Dear Sir: By yam" contract of· the 13th of Feby., A; D. with US, Y;01l agreed to.cl.1tand deliver to us 15,000 tons of ice, to be packed and delivered f. o. b. on boal'd.of vessels properly dunnaged
trict of:New"Jersey.
, InEl'irO.r <totheCircriit 'Court' ot" tlie.United\States:for the Dis'
FISHER V.NEWARK 'CITY ICE·CO.
tor a voyage to Newll.rk during the nIonths of J®e, July, August,'lllld Septem· bel', for which we are to pay you the .sum of $1.60 per ton; said ice to be stored in the building named in the said contract. A. large sum is still due us for advances made to you on said contract,and we have removed all the ice in said building with the exception of a small amount, not enough for a cargo, and wuuldnow call on you to tulfillsaid contract. . "[Signed] Newark City Ice Co. "Pel'S. D. Addis, Agt." (12) Although, upon receipt of this notice, thep\aintiffexpressed his intention to. fultUl his contract according to its terms, the only action he took thereafter was to offer ice to the amountofa. cargo \)1.' more from PalinC1"s Ice house, and the tender of ice, imide at Newark, as stated.. (13) At the date of the second supplemcntalcontract, to wit, April 7, 1890, the defendantspRid the further sum of $3,'i50as part of the consideration of said principal contract. (14) During the months of June, July, August, iuid September the plaintiff delivered .on board of vessels furnished by the defendant 6,15045-2000 tons of ice, being parcel of the 15,000 tons to be furnished under the contract. (15) The ice was to be paid for by the defendants, in addition to the $7,500 advancei, at the rate of 75 cents per ton as the lee was shipped; said 75 cents pel.' ton to be paid by sight drafts drawn by the said plaintiff on the said defendant, with bill of lading attached, and weight of ice to be verified by sworn weighers, whose certificates were to be attached to the bill of lading. On repayment in full of said advance by delivery of ice,. sight drafts, as afore.said, were to be drawn for the ice thereafter shipped at $1.60 per ton. (16) That on or about September, 1891, and after the ice stored as per contract had been eXhausted, the plaintiff offered to the defendant, through his agents, Charles A.Palmer and Charles H. Fisher, under the contract, 2,389 1::!94-20oo tons of ice, tl),en being on vessels afloat and in.the port of New York or elsewhere, which ice, it was alleged by the plaintiff, came from the Kennebecasis river, and Wa.s of the same quality as the ice required by said contract; also 4,000 tons of ice of a similar character, then stored in icehouses on the river Kennebecasis, but not in the houses mentiOned in said contract; and 4,000 tons of similar ice, then stored at Chamcook, a place about 50 miles distant from the place where the other ice was stored under the contract. (17) While. the evidence is "x.ceedingly unsatisfactory as to the title to the ice in the vessels afloat in New York harbor and elsewhere, for the ()f this decis;ion I assume that such ice was owned by the plaintiff. (18) The title to the ice at Chamcook was admittedly in'the plaintiff and his brother as joint owners. (19) For the Ice actUally received by the defendant the plaintiff has been fully paid.
Roger Foster, for plaintiff in error. John R. Emery, for defendant in error. Before ACHESON and DALLAS, Circuit Judges, and BUTLER, District Judge. BUTLER, District Judge. In this case, (which was tried without a jury,) involving the construction of a contract, and the defendant's alleged liability for failure to perform, forty-eight errOl'S are assigned. Most of them are unnecessary, and many are trivial. ,Snch a practice tends to wastE. of time, and obscurity, and deserves discouragement TI:.e only assignment whicn requires notice is that involving the of the contract. 'I'he instrument is inartifiCially and earelessly drawn; but the intention of the parties is, we think, reasonably clear. It provides, substantially, that the plaintiff shall ,-cut, house and deliver On board the defendant's vessels, 15,000 tons
572
FEDERAL REPORTER,
vol. 62.
of ice, of a given quality, during the months of June, July, August, and September, 1889; the defendant paying therefor $1.60 per ton, as follows: $3,750 on signing the contract, a further sum of equal amount the following March, in case three-fourths of the whole quantity of ice is then stored, in specified hOUSes, and 75 cents per ton additional as the ice is delivered, until the amount advanced is exhausted by shipments, and thereafter pay $1.60 a. ton as shipped. It also provides that the· ice shall become the defendant's property when cut. If the contract contained nothing more it should receive the construction adopted by the circuit court. The plaintiff in such case would be required to cut and store the entire quantity of ice named. But it contains the following additional paragraph: "Provided. however, the said Fred. S. Fisher shall have a right to make up the quantity to be delivered as aforesaid by purchase or otherwise, indemnifying the said Newark Ice 00. fOil' any additional expense It may be put to."
This language was intended to,. and does, qualify the preceding terms respecting .storage; otherwise it has no significance whatever. It was not intended to relieve the plaintiff from cutting, with his own hands or those of his employes; he needed no such relief. He had a right without· this provision to avail himself of anybody's cutting. The defendant was only interested in his procurement of the ice and storing it. He needed relief, however, against the obligation imposed by the preceding language to Btore the entire quantity. The defendant was interested in the storage of the three·quarters, named, which was necessary to secure his advances; but no further. This quantity was required to be stored in March, before the last advancement shoUld be made. To require the plaintiff to store (in his own houses) such part of the balance as he should purchase (stored already elsewhere) would subject him to heavy and unnecessary expense; and it was relief against this which the proviso was intended to afford. The stipulation that he "shall bear any additional expense" to the defendant arising from such purchase, seem's to remove all doubt of this. It is such "additional expense" as the defendant may incur in taking the ice from other houses, that is contemplated. If the ice was stored in the plaintiff's houses his purchasing could not entail any additional expense on the defendant. The scheme in the minds of the parties seems plain. It was for a sale and purchase of 15,000 tons of ice, on which $7,500 should be advanced. It was important the purchaser should be secured for this sum; and hence the provision for storing three·fourths of the quantity, and a lien upon it for the one-third of the price paid. It waano doubt understood from the beginning that a chalttel mortgage on the ice stored should be executed and recorded, as was done when the last advancement was made. The provision for a transfer of title as soon as it was cut afforded no security; and the storage of an additional quantity subsequently to the mortgage would not have increased the. security which that instrument afforded. That the plaintiff was not required
FISHER V. NEWARK CITY ICE 00.
or expected to store more than three-fourths by the last of March is made clear by the language referred to. Whether ice of the specified quality (12 inches thick) could be cut after that date is not shown; but we think it is safe to assume that it could not. The parties foreseeing that the plaintiff might not succeed in storing the full amount while the season for cutting lasted, added the proviso for his protection. The construction stated accords, therefore, not only with the terms of the contract, but with what seems to have been the in· tention of the parties. With this construction it becomes necessary to ascertain whether the plaintiff was ready to perform. Nothing shown relieved him -from the burden of proving such readiness. He loaded all the vessels forwarded. The tender of certain cargoes afloat, on payment of freight, is unimportant. It appears, however, that he had 4,000 tons on hand. It is immaterial that another was interested in this; he had entire control of it. The refusal to take it excused him from making further provision to deliver. The evidence shows, however, that he could have complied with his contract, and was ready and anxious to do so. The only question open, therefore, is that of damages. The plaintiff is not entitled to the balance of purchase money; but only to such sum as will cover his loss-in other words, the profit he would have made if the ice had been taken and paid for according to the con· tract. This may be ascertained by deducting from the unpaid purchase money the value of the undelivered ice in the market (in Canada) at the time it should have been taken, and the expenses of loading, etc., saved to the plaintiff by the failure to take it. The case must go back to the circuit court for the purpose of ascertaining the damages, and entering judgment against the defendant therefor. After the above opinion was handed down, and an order entered in accordance therewith, the defendant in error moved to amend the reversing order by striking out therefrom so much thereof as directs as follows: "And it is further ordered that this cause be remanded to the said circuit court for the purpose of ascertaining the damages in accordance with the opinion filed, and entering judgment against the defendant therefor."
At the same time the defendant in error moved for leave to file a petition for a rehearing of the cause so far as the same ralatea to or is covered by the said portion of the said order of reversal. John R. Emery, of counsel for defendant in error, in support of the motion. The defendant in error assigns the following reasons for said motion: "l<1I'St. Because on the said writ of error and on the opinion of the court the only proper judgment is a judgment of reversal and a direction for a new trial. The order is made as if the cause were heard on an appeal in equity, and not a writ of error.
,5?A
/"FEDEaAL REPORTER,
vol. 62.'
the a court of. reviE\W:',()J;! writ oJ IJ.Ower or to lUlY questions of ,tl\.p.t, Or, to direct of fa(rt ,sl\aIl-be as settled for the the judgment of below i'l#ersal of the ;}lldgrnEmtand order fot' new trial. .: · ,, d,:", , "TQ.ird. the of reversal as made deprives the defendant in Jll\}mgb,t, of revj..ewon the eJ;eePtions taken by it during the trial. and which it has the rightfo have reviewed in case, on Ii. new ,trial, judgment shoul<i be entered against it. .' " . '. ,.1 '. ! '!i'ncb o,'der of reversal. shall deprive the defendant in error ,"Fourth. i>f defensesWhicbit ls'en1;i,tled,to rais,e a ne.w, trial. " "Fifth. Because· in right and justice the said cause SllOuld. be retried by the (;ourt below upon evidenee to be produced on such new triai. .' '''Sixth. B!kause, for reasons, the said amendment sh9Uld be made."
other
RogevFoster, of counsel for plaintiff in errol', in opposition. 'The courthlidj;Yowel.' to enter the order inUle form that 'it adopted. Such .:& ,form' is authorized by section 701 of the· ReVised Statutes, which' provides follows: supreIlle <:qurt may modify ()r re;Verse n.ny judgment. decree or ,order.of or district court acting as .a circuit court. or of a district',cQurt in prize causes, laWfully brought before it for review, ()fmay difectslichjudgment, decree, Ol"order to be rendered; or such further .proceedingsto be; had bY" the inferiot, conn, as the justice of the case may shall not execution in aeause removed be,reqUire. Th.e.supreme tqre it from s:u,c4,courts, but shallsenol:l. special mandate to the inferior court to award execution thereupon." The same power is to the circuit courts {)f appeals by 'section 11 of, the Evarts,'ilct. The object of Rev. St. U. S.§ e '649, andof the stipulatIon providing that the court "shall make special findings upon the facts herein," would were a new trilU to be ordered, up<>n which entirely different findings UpWl the facts might be made. A simi'lar course has been frequenl)y adopted by the supreme court of the United .States. In Railway Co. v. Hoyt, 149 U, S. 1, 17 [13 Sup. Ct. 719], the case was also tried by a court without a jury, which made special findings. The opinion concludes as folloWSl "The; this court is that the judgment .awarded the lessees ill erroneous, and must be reversed, with costs, and that the cause should be remanded, with directions to the court below to enter 'judgment in favor of thep'laintiff in e1'1"01'fo1' the above amount of rent due it, With interest thereon from October 1, 1889, the date of judgment below, and it is accordinglJ, so ordered." In Insurance Co. v. Boykin, 12 Wall. 433, where a general verdict had been rendered below against all the defendants, !1;he court reversed the j'q(lgIllent, and <lil'ected that the damages be divided ,between the different defendants. '1'heliluprcme co]1rt said, speaking through i'Mr. Justice Miller: "Indeed, it was for a long timedellied that a court ofer\-l'!Or could award a venire facias de novo. In the case of Philips v. Bury, reported at great length in Skin. 447, which was an action in the king's bench .and writ of error to the peers, who reverl'led the judgment below, the case was 'Wried ba.ck and forward' several tImes' between the peers and the king's . bench on the question of which court Should render the judgment on the verdict, and it was flitally settled that the hOuse of lords should give the judgment ,.which the. king's bench ought to haVe given, Eyre, C. J., saying that, where jl;ldjpllent is, upon a verdict,'if theyrevCrse a judgment, they ought to give the same judgmentthat ought to have been given at first, and that judgment ought 'to be sent to the court below. SO ill SlOComb's Case, Cro. Car. 442, on a general verdict, where judgment was revel'sed in the king's bench, it was,' in the language of the reporter, 'agreed by all the court, if the declaration and ver,qict be good,tJ:j.en judgment ought to be given for plaintiff, whereof Jones at .. first doubted, but at last agreed thereto, for we are fu give such jUdgment as they ought to have given there.' In 1 Salk. (Anon., 1 SaIl;:, 401. See, also, Butcher v. POI"ter, 1 Show. 400) it lSi Baid: 'If judgment.bebelow for plaintiff, and error is brought, and that judgment reversed, yet, if the record will war'-rant it,the court ought to give a new judgment for the plaintiff,'-which is . precisely the, case before us., See also, Butcher v. Porter, ld. And in :.\lellor v. Moore, 1 Bos. & P. 30, on the authority of these and other cases, the court
FISlIER V. NEWARK CITY ICE CO.
575-
of exchequer chamber held that, when a judgment is reversed on demurrer in favor of plainti:fY, the case is sent down, and a writ of inquiry goes; but when it Is upon a verdict they should give the same judgment that ought to have been given at first, and that judgment ought to be sent below. In Gildart v. Gladstone, 12 East, 668, on a case from the common pleas having been reo versed on a special verdict, Lord Ellenborough said: 'The court are bound', ex officio, to give a perfect judgment upon the record before him.' The provisions of our statute of 1789, already cited, show that the lawyers who framed it were familiar with the doubts which seemed at that time to beset the courts in England as to the precise judgment to be rendered in a court of errors on reversing a judgment, and they in plain language prescribed the role which has since become the settled law of the English courts on the same subjects." In Bank v. Smith, 11 Wheat. 171, 172,182, where a demurrer to the evidencehad been sustained, and judgment below entered for the defendant, the supreme court, on a reversal, ordered that judgment be entered for the plaintiff for the damages that were que him, saying: "We are accordingly of opinion that the evidence was sufficient to entitle the plaintiffs to recover; that the judgment of the court below must be reversed, and the cause sent back, with directions to enter judgment for the plaintiffs upon the demurrer to evidence for the amount of the note and interest." In Insurance Co. v. Piaggio, 16 Walt 378, where judgment had been rendered for the plainWY, the court, on writ of error, instead of granting a new venire, modified the judgment by disallowing a certain amount of damages therein included, and directing that the court below enter judgment for a less amount with interest. The practiceadopted by the court in this case is in accordance with the former practice in the house of lords and the exchequer chamber, whleh were accustomed, when reversing a judgment in favor of the defendant in a case like that at bar, to direct a writ of inquiry as to the damages to be issued by the court below. The special findings here are to be treated as a special verdict. Rev. St. U. a writ of error brought in the king's bench, that court, having the record before them, may in all cases give such judgment as the court below should have given; and, if necessary, may award a writ of inquiry to assess ilie damages. And so, when judgment is given against the plaintiff in the king's bench on a special verdict, by which the damages are assessed,-as where judgment is given on demurrer,-the exchequer chamber or house of lords. ... ... ... not having the record before tllem, but only a. transcript, cannot give a new and complete judgment, but only an interlocutory judgment quod recuparet; and, the transcript being remitted, the court of king's bench will award a writ of inqUiry, and give final judgment." Citing Philips v. Berry, 1 Ld. Raym. 5, 10, 1 Salk. 403, 1 Skin. 447, Garth. 319; Denn v. Moore, 1 Bos. & P. 30; Faldowe v. Ridge, Gro. Jac. 206. See, also, Stephens v. Gowan, 6· Watts, 511, 513, 514. 2 Tidd, Pr. p. 1179: "If judgment be given against the defendant, and he bring a writ of error upon which the judgment is l'eyersed, the judgment, it is said, shall only be quod jUdicium reversetur; for the writ of error is brought only to be eased and discharged from that judgment. But, if judgment be given against the plaintiff, and he bring a writ of error, the judgment shall not only be reversed, if erroneous, but tlle court shall also give such judgment as the court below should have given, for the writ of error is to revive the first cause of action, and to recover what he ought to have recovered by th ' first suit, wherein an erroneous judgment was given." S. § 649. 2 Tidd" Pl'. p. 1180: "When a judgment against the plaintiff is reversed on
The motion was denied without any opinion being filed.
576'
J'EDERAL REPORTER,
In ra MITCHE1JL et aI.
(District Court, E. D. Wisconsin. June 25, 1894.) CONSTITUTIONAL LAW- INTE.RSTATE COMMERCE SALESMEN.
LICENSE TAX ON TRAVELING
4. state statute imposing a license ta:x: upon persons traveling from place to place f()l" the sale of goods, "at retail or to consumers," by or otherwise (Rev. St. Wis. § 1570), is void as an interference with interstate commerce in so far as it lI-pplies to agents soliciting orders by sample for goods w,h1ch belong to a resident of another state, and which are at the time outside of the state, and are proper articles of commerce.
Applications by B. J. :Mi,tchell, W. W. McClure, C. E. Devendorf, and Harry Birkell for writs of habeas corpus. Clarence H. ChUds, for petitioners. Henry Fitzgibbon, for respondent. SEAMAN, District Judge. These several petitioners are imprisoned in Winnebago cOUIlty upon convictions in justice court for alleged violation of section 1570 of the Revised Statutes of Wisconsin, and amendments thereof, :which provide that no person who is not licensed by payment of a fee pres'cribed by a subsequent section shall travel from place to place within the state for sale of goods "at retail or to consumers," by sample or otherwise, with numerous exceptions of permanent traders and other classes, not including any under which the petitioners can claim exemption. They were all in the employ of W. A. Edwards, a dealer in various articles of merchandise, residing and having b,is place of business at Minneapolis, Minn., and all were soliciting orders for sale of the employer's goods for future deliveries, and having only samples with them. It is undisputed and conceded that the goods which they respectively at Minneapolis, and not in Wisconsin, and were offered for legitimate and proper articles of commerce. No orders were in fact taken, and no sales or deliveries wereactually made. The aid of this court is invoked on the ground that the arrest and imprisonment in each case violates well-settled rights of interstate commerce, of 'which the power to regulate is expressly reserved to congress by the United States constitution. Upon the state of facts here presented, it is clear that the petitioners were in the exercise of "interstate commerce," as defined by the supreme court in numer· ous decisions, and they were not infringing any law of the United States. The only justification f()r their iniprisonment is asserted under the state statute entitled "Of Peddlers" (chapter 67, Rev. St., as amended by chapter 510, Laws Wis. 1889; section 1570, Sanb. & B. Ann. St.). It is unnecessary to determine whether the terms of this statute would intend the imposition of a license fee in these cases; but it is sufficient that the attempted enforcement is against a clear exercise of interstate commerce, and an interference therewith which is "repugnant to that clause of the constitution of the United States which declares that congress shall have power to regulate commerce among the several states." Robbins v. Taxing Dist., 120 U. S. 489, 7 Sup. Ct. 592. The decisions of the supreme court are