TAMVACO v. LUCAS. [ 589 ] [ *590 ] the United Kingdom, and neither the defendants nor Dart had any notice or knowledge whatever of the quantity of wheat of which the said cargo consisted, except from the said shipping documents; and thereupon Dart, having notice of all the premises in the plea mentioned, did refuse to accept the said documents and to pay the plaintiffs for the said cargo, as he lawfully might for the cause aforesaid, which is the alleged breach of the said contract by Dart in the declaration mentioned. Second replication to 4th plea. That the cargo of wheat in that plea mentioned was a cargo of Taganrog Ghirka wheat, consisting of about 2,000 quarters of wheat, and of more than 1,800 quarters of wheat, and of less than 2,200 quarters of wheat, and of 492 lbs. weight each; and the delivered quarters from the said ship, on discharge of the said cargo, were less than 2,200 quarters of wheat. Demurrer. Joinder in demurrer. Mellish [was heard for the defendant (1); Blackburn, contrà]. Cur. adv. vult. LORD CAMPBELL, Ch. J. now delivered the judgment of the COURT: We are of opinion that the defendants are entitled to our judgment. The question is, whether, upon the facts stated and admitted in the pleadings, Dart, the purchaser, *broke the contract, and was liable to be sued upon it, by refusing to accept and pay for the wheat. This is not, as was the case in Coras v. Bingham (2), the sale of a specific cargo afloat in a particular ship, but the sale of a cargo to be shipped in any ship the sellers might select of the class specified: and the cargo, although not of an absolutely defined amount, was to be between 1,800 quarters and 2,200 quarters of 492 lbs. each. We think the agreement was that it should not exceed that quantity. If the cargo offered exceeded that quantity, so that, if accepted, the sellers would have had a demand upon the purchaser for payment of more than 2,200 quarters, we think he was not bound to accept it. He did not want a larger quantity, and he could not be expected to be prepared to pay for a larger quantity. On the tender to him of the cargo, by delivering the "usual shipping documents," he could not have accepted the quantity he agreed to purchase and reject the excess. It seems to us quite clear that he would have been liable to pay for the excess, if there had been any; there being no ground here for (1) Before Lord Campbell, Ch. J., Wightman, Erle and Hill, JJ. (2) 95 R. R. 842 (2 El. & Bl. 836). saying that the cargo was to be taken at a fixed sum, for better for worse; and there being an express stipulation that, if the quantity delivered by measurement should exceed the estimated weight, unless from the result of sea damage or heating, the purchaser was to pay for the excess. Therefore, if there had actually been 2,215 quarters of wheat on board the ship, as the bill of lading indicated, it seems clear that Dart would not have been liable for refusing to accept and pay for it. The plaintiffs must rely upon the invoice and the fact that, upon the delivery of the cargo, it did not consist of more than 2,200 quarters. But we are of opinion that the plaintiffs were not at liberty to make out an invoice on any other principle than that agreed upon, viz. "The measure, for the sake of invoice, to be calculated at the rate of 100 chetwerts equal to 72 quarters. Sellers to guarantee the delivery of the invoice weight." They were bound to make out the invoice at the rate of 72 quarters for 100 chetwerts. Then, if the "usual shipping documents" tendered represented the cargo to consist of more than 2,200 quarters, we think that the purchaser was justified in refusing to accept it, and that he cannot be rendered liable by evidence that, in truth, there was on board the ship no excess beyond the quantity which he had agreed to purchase. We must remember that the ship, with the cargo on board, was to go "to any safe port in the United Kingdom calling for orders," and that, according to the usage of the trade, the cargo, while afloat, in all probability would be resold by Dart, and might pass through the hands of several subsequent purchasers. He ought to have been in a situation to represent that the cargo consisted of quarters according to the number of chetwerts in the bill of lading. But he could not have accepted, and provisionally paid for, the cargo, without being involved in great perplexity as to how he should afterwards dispose of it, nor without danger of litigation with the plaintiffs as vendors, and with those who might become purchasers under him. Upon the whole, we think that the plaintiffs were not ready and willing to perform their part of the contract, and that there ought to be judgment for the defendants. Judgment for the defendants. TAMVACO v. LUCAS. [591] 1859. June 13. [ 592] [593] [ *594 ] TAMVACO v. LUCAS. (1 El. & El. 592-597; S. C. 28 L. J. Q. B. 301; 5 Jur. N. S. 1258; 7 W. R. 568.) For head-note, see ante, p. 355. THE declaration was in the same form, and the contract note in the same form and words (except as to dates), as that in the first action. Fourth plea. That the said cargo of wheat, of which the plaintiffs were so ready and willing to deliver to the defendants. the shipping documents, as in the declaration mentioned, was, at the time it was shipped on board at Taganrog, and at all times subsequent, a cargo of wheat consisting of less than 1,800 quarters, both according to the said measure of 100 chetwerts, equal to 72 quarters, and according to the said measure that each quarter was to weigh 492 lbs. Demurrer. Joinder in demurrer. Blackburn, for the plaintiffs. Mellish, for the defendants, was not called upon. I am of opinion that the plea is good. The purchasers appear to have been most anxious to guard against having to pay for a cargo *falling short of 1,800 or exceeding 2,200 quarters: and, with that object, the contract note prescribes those quantities as the minimum and maximum respectively allowed to be shipped. It was intended that the shipping documents should show, upon the face of them, a cargo actually shipped which had been ascertained to be within those limits. It is stipulated by the contract that, if the cargo should turn out to be somewhat greater or less than the precise quantity stated in those documents, still being within the prescribed limits, the excess or deficiency should be allowed for by the purchasers or the sellers respectively: but there is no provision, as was contended by the plaintiffs, that if there be an excess or deficiency which makes the cargo greater than the limited maximum or less than the limited minimum, such excess or deficiency is to be allowed for, and the cargo accepted. Now the plea alleges that the cargo was, at the time of shipping, and at all times subsequent, below the limited minimum. I think the plaintiffs have failed to show that the purchasers were, under such circumstances, bound by the terms of the contract to accept the cargo. WIGHTMAN, J.: The parties here contract for the sale of a cargo of wheat to consist of between 1,800 and 2,200 quarters. That leaves a wide limit, 400 quarters, for any difference between the cargo actually delivered and the cargo as stated in the bill of lading. The provision for allowance by the purchasers, or by the sellers, for any excess or deficiency, may well apply to any excess or deficiency to the extent of those 400 quarters, and which would leave the actual cargo still within the prescribed limits: but I do not think that that provision *was intended to compel the purchasers to take the cargo if it fell short of 1,800 or exceeded 2,200 quarters. In the case which came before us upon a precisely similar contract (1), the shipping documents themselves showed, upon the face of them, an excess above the prescribed maximum; and we held that the purchasers were not bound, upon the tender of those documents, to accept them, or liable to pay for the cargo. In the present case the shipping documents, upon the face of them, show a quantity within the prescribed limits; but the amount actually shipped is below them: and the question here, therefore, is whether, if the shipping documents untruly represent the cargo as being within the limits, and the cargo, as the plea alleges, is really not within them, the purchasers are bound to accept the cargo. If, as I suggested in the course of the argument, the plea had expressly alleged that the shipping documents, by mistake, stated a cargo within the limits, and that the actual cargo was below them, that would surely be a substantial defence, and the plaintiffs could not contend that the documents were conclusive for the purpose of acceptance of and payment for the cargo. The plea here does not expressly allege such misstatement in the documents: but I think that, as it stands, it substantially raises the same defence, and shows that the purchasers were not bound to accept. ERLE, J.: we I construe this contract in the same way as the LORD CHIEF JUSTICE and my brother WIGHTMAN. The purchasers say will not take the cargo unless it appears by a certain measure to be as much as 1,800, and not more than 2,200, quarters; and unless the quantity *actually shipped turns out to be within those limits." This case does not appear to fall within the reason of our decision in the former case (1). Here the contract is a very simple one: the purchasers agree to take the cargo, provided it appears to be, and actually is, within those limits; and both sides agree that any variation between the quantity stated in the bill of lading and the actual cargo, if (1) Ante, p. 355. TAMVACO v. LUCAS. [ *595 ] [ *596 ] the latter be nevertheless within the limits, is to be a matter for subsequent arrangement. The fact alleged in the plea, that the actual quantity shows a variation which leaves it below those limits, is a sufficient ground for not accepting the cargo. CROMPTON, J.: The words of this contract seem to me to be too clear to admit of any doubt. The purchasers, knowing that there are often difficulties in arriving at an exact measurement of a cargo, assign limits of variation to the quantity of the cargo in question, and agree to take it if it be somewhere within those limits. The contract here is the same as that in the former case (1), which I did not hear argued, but the decision in which I thought quite right. There, however, the shipping documents themselves showed a quantity beyond the prescribed limits; and the action was for not accepting them, upon tender, and not paying the invoiced price, which was for a quantity within those limits. The purchasers there said, "we will not accept a cargo which apparently will turn out to be beyond the limits, and so subject ourselves, under the stipulation in the contract note, to pay for the excess. We decline to accept at all.” The COURT *held that such stipulation applied only to an excess or deficiency which still left the actual cargo within the prescribed limits; and that the purchasers were not bound, in the event of any greater excess or deficiency, to accept the cargo and make a subsequent settlement as to the variation. That seems to me to be the true construction of this stipulation in both cases. If it were to be construed as the plaintiffs contend, I do not see what was the use of assigning any limits to the variation of the cargo. The parties intended that such variation might be afterwards made good by one side or the other, if, and only if, the actual cargo were still within those limits. I think that the plea is an answer to the declaration. It avers that the quantity shipped was not, either actually or according to the agreed scale of measurement, within the limits. That is a good ground for not accepting the cargo. The contract is a perfectly plain one: and the parties to it cannot depart from its express provisions. Judgment for the defendants. (1) Ante, p. 355. |