
    Joseph H. Rogers v. Franklin Woodruff et al.
    W. contracted with R. for the sale of salt to arrive — the contract being in these words: “ Cincinnati, October 13, 1862. Sold J. H. Rogers one thousand sacks coarse Liverpool, and two thousand sacks fine Liverpool salt, at $2.10 per sack, to arrive by the 15th of November.” In an action on such contract by the purchaser against the seller, for failing to deliver the salt — Held: 1. That the words “to arrive by the 15th of November,” are words of condition and descriptioñ only, and do not import a warranty that the salt shall arrive by the day named. 2. In such action testimony offered by the purchaser to show that by the custom of merchants the words “ to arrive by the 15th of November,” meant “deliverable by the 15th of November,” was properly excluded.
    Error to the Superior Court of Cincinnati.
    Franklin Woodruff and others, the plaintiffs'in the Superior Court, sued to recover the price of eight hundred and eighty-three sacks of Liverpool salt they alleged they had sold and delivered to the defendant, at $2.10 per sack. The defendant met this demand by a counter-claim, by which he alleged that, on the 13th day of October, 1862, he made a contract in writing with George W. Phillips, who was the duly authorized agent of plaintiffs, in that behalf, by which contract, plaintiffs sold to the defendant one thousand sacks coarse Liverpool, and two thousand sacks fine Riverpool salt, at two ten one-hundredths dollars per sack, all of which was to be delivered by the 15th day of November, then next ensuing, to be paid for by the defend.ant upon the.delivery thereof.
    He further averred that the plaintiffs failed to deliver any of said salt by the 15th of November ; that for some time after that date he was ready and willing to receive the same, and so notified plaintiffs; that between that date and December 8th, they did deliver the eight hundred and eighty-three sacks mentioned in the petition; that failing to deliver the remainder he, on December 8th, notified them he would not receive any more, but should hold them responsible in damages. He claimed damages at the rate of ninety cents per sack for the salt not delivered.
    The plaintiffs replied, denying that they contracted to deliver the salt by November 15th, and averring, among other things, that the contract made by them with defendant was conditional — the salt being sold to arrive, and being expected to arrive; that none of it did arrive by the time named, and that the contract was therefore determined; but that salt having advanced, defendant continued to receive it as it arrived until December 8th, when, salt having declined, he refused to receive any more.
    Upon the trial plaintiffs admitted that salt, such as described in the contract, on November 15, 1862, was worth three dollars per sack. On December 8th, it had fallen below contract price.
    The contract, put in evidence by defendant, was in these Words:
    
      “ Cincinnati, October 13, 1862.
    “ Sold J. H. Rogers one thousand sacks coarse Liverpool,, and two thousand sacks fine Liverpool salt at $2.10 per sack, to arrive by the 15th November.
    “ George W. Phillips, Jr.”
    It further appeared that the salt called for by the contract did not arrive by November 15th ; that portions of it did arrive, and were delivered to the defendant, as the same arrived, between November 15th and December 8th.
    Defendant called witnesses, and offered to prove that by the general custom of merchants, the phrase “ to arrive by the 15th November,” meant “ deliverable on or before the-15th of November.” This testimony was objected to and excluded, and defendant excepted.
    The case was tried by the court without a jury. The court held the defendant not entitled to recover on his counter-claim, and rendered judgment for plaintiffs, as demanded in the petition, for the value, at the contract price, of the salt delivered.
    The defendant moved for a new trial, which being overruled, he took a bill of exceptions setting out all the testimony.
    It is now insisted on his behalf:
    1. That the contract was not conditional, but absolute;, and that by its terms plaintiffs were bound to deliver the salt by November 15th.
    2. That it was competent for the defendant to show that-by the custom of merchants, the terms “to arrive by 15th November’,” meant “ deliverable by 15th of November.”
    
      D. Thew Wright, for plaintiff in error:
    1. The contract was not conditional, but absolute. Havemeyer v. Cunningham, 35 Barb. 515.
    2. Rogers’ cause of action being complete, nothing is a discharge of his claim for damages but payment, or a contract made upon good and sufficent considerations, for a settlement and release of such claim. See Thurston & 
      
      Hays v. Ludwig, 6 Ohio St. 1; Ogle v. Vane, 2 L. R. (Q. B.) 275, 382, 284; Bacon v. Cobb, 45 Ill. 48, 55.
    3. On a refusal to perform a contract, the party is at once entitled to his action, and need not wait for the time of performance to arrive. Crist v. Armour, 34 Barb. 387, and eases cited. Rogers was entitled to maintain an action the day after the 15th of November, and nothing is shown that amounts to a payment or discharge.
    4. The Superior Court erred in refusing to allow him to show, that by the custom or usage of merchants in Cincinnati, these phrases “to arrive” and “to arrive by the 15th November,” meant that that was the day fixed for the delivery of the property. See Story Sales (Perkins ed.), sec. 358, p. 446.
    
      Henry Snow, for defendants in error.
   Stone, J.

The counter-claim of the defendant below is-based upon an executory contract made October 13, 1862, by which, as defendant alleges, the plaintiffs sold and contracted to deliver to him by the 15th of November, then next ensuing, 3,000 sacks of Liverpool salt. This allegation of the counter-claim is denied by the reply, and is not, in our judgment, supported by the contract given in evidence.

Effect is, of course, to be given to the words of the contract, “ to arrive by the 15th of November,” but the question is, what effect? They are, as we think, words of condition and description only, and can not be construed as a warranty that the salt shall arrive.

They serve to distinguish the salt which was the subject, of the contract from the mass of salt of the same variety found in the market. The salt plaintiffs contracted to sell and defendants to buy, was not salt which .plaintiff's may then have had on hand, or salt which had previously arrived. It was salt which was to arrive between the date of the contract and the 15th of November following. Whether it would arrive or not depended upon contingencies, not absolutely within the control of either party. If it arrived within the time limited, plaintiffs were impliedly bound to -deliver it upon the contract. If it failed to arrive within that time no such obligation arose. There was, in that case, no salt which, under the terms of the contract, the plaintiffs were bound to deliver or the defendant to accept.

Cases have frequently arisen involving the construction of contracts, in their essential features, not to be distinguished from the contract here in question. It has uniformly been held that contracts of this description — for the sale of goods to arrive — are conditional, the words “ to arrive,”or other equivalent words, not importing a warranty that the goods will arrive, and the obligation to perform the contract by an actual transfer of the property being, therefore, in the absence of other words showing a contrary intent, contingent upon its arrival. Alewyn v. Pryor, Ryan & Moody, 404; Lovatt v. Hamilton, 5 M. & W. 639; Johnston v. Macdonald, 9 M. & W. 600; Shields v. Pettee, 2 Sand. 262. See also Russell v. Nicol, 3 Wend. 112; Benj. on Sales, 470; 1 Parsons on Cont., title “ Of Sales to Arrive,” and cases cited.

In the present' case, it is not alleged that any of the salt referred to in the contract arrived, or came within the control of the plaintiffs prior to the 15th of November, nor is it claimed that its arrival was delayed by their agency. The defendant counts upon the contract as made, and bases his claim to recover solely upon the ground that the plaintiffs, by its terms, stipulated absolutely, and at all events, to deliver the salt within the time limited.

2. The testimony offered by defendant to show that by the custom of merchants, the words “ to arrive by the 15th of November,” meant “ deliverable on or before the 15th of November,” tended materially to change the meaning and legal effect of the contract, and was clearly incompetent.

Judgment affirmed.  