
    Hawes, Gray & Co. v. Lawrence & Hicks.
    In a contract for the sale of goods, on board a merchant ship, to arrive, the words “sailed on or about the 15th March” were held not to be a condition precedent, or to import a stipulation or a warranty that the ship sailed at the time expressed.
    
      Held also, that if the representation thereby made, were made in good faith, and the vessel sailed on the 26th March, the difference in time did not authorize the buyer to refuse to receive the goods.
    Evidence of commercial usage is not admissible to prove that sailing on the 26th, could not be a compliance with a clause in a contract for the sale of oil to arrive, which expressed that she had “ sailed on or about the 15th of March.”
    Evidence is not admissible, to prove that there was a spring and fall trade in oil, that the spring trade ended before the oil sold arrived, and keeping it over summer would waste and deteriorate it, in order to ascertain whether such a clause is a warranty, or is a material representation on which the parties relied, making an essential part of the contract.
    On a sale of about 6,000 gallons of oil, to arrive by a specified ship, it turned out that the invoice shipped contained 7,211 gallons. Held, that an offer to deliver 6,000 gallons, or to deliver the whole, charging for 6,000 gallons at the contract price, and for the residue at the market price (which was less,) was a good tender on. the part of the seller, in fulfilment of the contract.
    
      Held also, that a parol offer to this effect might be proved, although there were written tenders, in all of which the offer was made of the entire invoice at the contract price.
    (Before Oakley, Ch, J., and VariDEKrOEL and Sandfokd, J. J.)
    Sept. 21, 22 ;
    Sept. 29, 1849.
    This was an action of assumpsit, brought to recover damages for refusing to accept a certain quantity of linseed oil, to arrive, and imported in the ship Marcia, from London to Boston, and thence sent coastwise to New York, in the month of June, 1847, and sold by the plaintiffs to the defendants, through a broker by a bought and sold note.
    The cause was tried before Sandfoed, J., in December, 1848.
    The plaintiffs, who resided at Boston, proved that they authorized Henry M. Harding, a broker in New York, by letter, to sell the oil in question, to arrive.
    The letter was dated March 22, 1847, and stated that they had five or six thousand gallons English linseed oil on board the Marcia, then on the way from London to Boston; and that the vessel was to have sailed from London on the 15th of March.
    In compliance with this authority, Harding .sold the oil to the defendants by a broker’s note, of which he gave one to the buyer and one to the seller. The notes were as follows :
    “ Sold for account of Messrs. Hawes, Gray & Co., Boston.
    “To Messrs. Lawrence & Hicks, New York.
    “ About 6,000 gallons prime English linseed oil, in usual sized packages, to arrive per Marcia, from London, sailed on or about the 15th March ult., at 72c. per gallon, cash, deliverable in Boston or New York, at the option of the buyers ; the vessel being bound to the port of Boston. IIeney M. Haeding,
    “ Broker, 73 Wall st.
    “ New York, April 3d, 1847.”
    The vessel arrived at Boston on the 15th of May. The broker, on the 16th or 17th, communicated the arrival of the oil to the defendants, and asked them to decide whether they would take the oil deliverable in Boston or New York. They said they would not decide that day ; but instructed him to inquire what day the Marcia sailed from London. On the 18th they requested him to order the oil to New York, by the first packet, provided it was of prime quality, and the Marcia did not sail after the 25th. The oil arrived in New York on the 5th of June. The defendants were at once notified that the oil had arrived. Nothing being heard from them, and two days afterwards, the oil having come out of the vessel, the broker on the 7th June gave them notice in writing, as follows :
    “ New York, June 7, 1847.
    “ Messrs. Laweence & Hicks :
    “ Gents, — I beg to inform you in behalf of Messrs. Hawes, Gray & Co., Boston, that their contract with you is now fulfilled, and that the 57 casks linseed oil is landed from the schooner Abbott Lawrence, and now on the dock at the foot of Maiden, lane. Your immediate attention to the receipt of the same is respectfully solicited, as in the event of not so doing I shall be compelled (agreeable to my instructions, and which you have already been advised of',) to cause the same to he advertised forthwith to be sold at public auction for account of whom it may concern.”
    They did not accept the oil; it was advertised two days, and sold at auction, on 9th June. It was prime quality, in prime order, and in the usual size packages. At the sale, thirty casks sold at seventy-one cents, and twenty-seven casks sold at seventy cents per gallon. The net proceeds of the sale were $4,265 81. A bill of the deficiency, amounting to $926 11, was presented to the defendants on the 12th of June. The whole quantity of oil was 7,211 gallons.
    It further appeared that the defendants declined to receive the oil, on the ground that the Marcia did not sail from London till the 26th of March, as soon as they were informed of that fact. Previous to the arrival of the oil, the broker, on sending to the defendants the bill of lading of the oil as shipped from Boston, offered verbally to deliver to the defendants six thousand gallons of it, or to deliver to them the whole invoice, they taking 6,000 gallons at the contract price, and the surplus at the market price; both of which offers they declined. In all the written offers, the whole invoice of the oil was tendered, and the defendants objected to the evidence of the verbal offers.
    The evidence further showed, that the fifty-seven casks of oil were shipped to the plaintiffs in one invoice on board the Marcia in London; that there were in all 105 casks shipped to them by that vessel, in two invoices. The plaintiffs were advised of the invoice of the 57 casks, by a letter, dated London, March 3d, and received about a fortnight after, in which their correspondents advised them the Marcia was to sail on the 15th, for Boston. The bill of lading of the 57 casks was dated March 5th, of the 48 casks March 15th. They were advised of the latter shipment by a letter of the 27th March from London. The Marcia came out of the docks in London on the 26th March, but did not discharge her pilot in the Downs till the 29th March at midnight.
    The defendants’ counsel moved for a nonsuit on the grounds :
    1. That the words, sailed “on or about the 15th,” were a warranty or condition precedent, and that the sailing on the 26th was not a compliance.
    
      2. That the tender of 7211 gallons, net, was too great an excess over the amount purchased, viz. “ about 6000 gallons,” to be a good tender.
    3. That the written tender and correspondence, and the sale of the 7211 gallons, and the demand of the amount due on a sale of that quantity, could not be contradicted, or affected by the parol offer of 6000 gallons.
    4. That the contract being indefinite as to the quantity sold, was void for uncertainty.
    The court refused the motion for a nonsuit.
    The counsel for the defendants then offered to show, that both by commercial usage, and in this particular case, a vessel sailing from London, on or about the 15th March, would not have been considered as having so sailed, if she left on the 26th. Also, that in a tender of 6000 gallons, allowing for wantage, leakage, &c., an excess of more than five per cent, would not be considered as coming within the contract, and that the word “ about ” is put into the contract to provide against wantage and leakage. Also, that there is a fall and spring trade in linseed oil, and that the spring trade had ended before the oil arrived, and that to keep it over the summer would be prejudicial to the owner by deterioration, leakage, &c. To all of which several offers the plaintiffs’ counsel objected ; the court sustained the objection, and the defendants’ counsel excepted severally to each.
    The defendants’ counsel then requested the court to charge the jury as follows, viz.:
    1. That sailing on the 26th March from London to New York, was not a sailing within the contract.
    2. Also, that the correspondence between the parties and Mr. Harding excludes or overrides the parol evidence of Mr. Harding, as to a tender of 6,000 gallons, under the pleadings and evidence.
    3. Also, that a tender of 7,211 gallons, in the judgment of law, was not a tender of about 6,000 gallons, under the evidence.
    The court charged the jury, that, by the contract, the sailing of the vessel on or about the 15th March, was not a condition of the contract; and if the representation of the time of sailing were made without fraud, her sailing on the 26th did not prevent the plaintiffs from recovering.
    The defendants were not bound to receive under this contract 7211 gallons; but if the plaintiffs offered to deliver 7,211 gallons, with an expressed willingness on their part to deliver 6000 gallons, if the defendants would receive it, that would be a sufficient tender to entitle the plaintiffs to recover. If the defendants declined to accept the latter quantity, or if the plaintiffs gave the defendants an opportunity to receive 6000 gallons, and the defendants declined, then the tender was sufficient and unobj ecti onable.
    The sole question for the jury is, whether the plaintiffs tendered the 6000 gallons in the manner stated by the witness, 11 arding; if so, the plaintiffs will be entitled to a verdict as for 6000 gallons, with interest.
    To which charge of the court the defendants’ counsel excepted. The jury thereupon rendered a verdict for the plaintiffs for $852/⅛.
    
      
      D. Lord, for the plaintiffs.
    I. The tíme of sailing, stated in the sale note, was not a condition of the contract of sale. It was a representation in New York of the state of information of the parties as to the time of the supposed sailing of the vessel. It was fairly made, and believed to be true. It was an event uncertain to both parties, and the defendants took the risk of the time of arrival. If a condition, either it is void or the contract is void, for uncertainty. If a representation, it can have all the effect which good faith could require.
    In no decision is a clause made a condition, unless it be definite. If it had been on or before, it wonld have been definite, “ On or about,” are totally incompatible with a warranty. If the parties intended to make the time essential, they would have provided a precise time for arrival or delivery. The case of OUoe v. Booker, 1 Exchequer Rep. 416, illustrates that. In a charter party, a statement of about the amount of tonnage, is not a warranty. (Abbott on Shipping, by Story and Perkins, 241.)
    If the market price had advanced, and we had taken the ground that the ship did not sail till the 26th of March, and we were therefore discharged from our contract, how absurd it would appear ?
    II. Unless the time of sailing was a condition of the contract, the evidence offered as to the trade in oil, and of what was considered out of time, was clearly inadmissible. Usage is only allowed to give certainty to the contract. That offered, would make a contract of one date or one season of the year, mean a very different thing from one at another date or season.
    III. If having sailed on or about the 15th of March, was a condition, it was for the court to decide, under the undisputed facts, if the condition was broken. A delay of ten days in a ship, not a packet, in her time of sailing, was no substantial departure from the condition.
    IV. The parcel contracted for was identified, and the defendants were entitled to the whole invoice: and it was properly-tendered ; but they might be entitled to refuse any quantity beyond the number of usual sized packages, whose contents least exceeded 6,000 gallons ; and this was also properly tendered. There is no uncertainty in the subject sold.
    The tender could be proved by written evidence or parol, or by both. There could be no surprise, it being a fact within their own knowledge, and in issue in the cause.
    
      II Nicoll, for the defendants.
    I. The testimony of Harding in relation to the parol offer, to take six thousand gallons, ought to have been excluded; because the tender, negotiations, and claims relative to its subject matter, being wholly in writing, parol evidence was (especially under the pleadings in this cause,) inadmissible to alter its terms.
    The pleadings go solely to a tender of 7,211 gallons, as under the contract. The case set up was therefore a surprise.
    II. The motion for a non-suit ought to have been granted, because,
    1. The words, “ sailed on or about the 15th,” if a question of law as the judge treated it, were a warranty or condition precedent, and the sailing on the 26th was not a compliance. Considering the nature of the contract, the time the vessel sailed, is a material element, and the first in the mind of the buyer on contracting. Without it he cannot calculate when she will be likely to arrive. This was as important to our view of the contract as the quality of the oil. In a contract of insurance, these words would be a warranty. (2 Duer on Ins. 644 ; Jennings v. IThenango Mutual Ins. Co., 2 Denio 80; Burritt v. Saratoga Mutual Ins. Co., 5 Hill 191: Callaghan v. Atlantic Ins. Co., 1 Edw. Ch. R. 74; Hastings v. Lovering, 2 Pick. 219 ; Osgoorl v. Lewis, 2 Harr, and Gill 518 ; Cramer v. Bradshaw, 10 John. 484; Ilenshmo v. Bobbins, 9 Metcalf 88.) We did not want any opinion as to the time of sailing; we wanted the fact. (Higgins \. Livermore, 14 Mass. 106 ; Glaholm v. Hays, 2 M. & G. 257; lye v. Fynmore, 3 Camp. 462; Shepherd v. Fain, 3 Bam. & Aid. 240 ; Story on Sales 358.)
    2. The written tender and correspondence, the sale of 7,211 gallons, and the demand of the amount due on the sale of that quantity, could not be contradicted or overrode by the parol offer of 6,000 gallons.
    3. The tender of 7,211 gallons net, was too great an excess over the amount purchased, viz. “ about 6,000 gallons,” to be a good tender. (Gross v. Eglin, 2 Barn. & Adol. 106 ; Bussell v. Nicoll, 3 Wend. 119.)
    4. The contract being indefinite as to quantity, was void for uncertainty.
    III. The usage and other facts proposed to be shown by the defendants, were improperly excluded, because—
    1. All contracts are made in reference to the usage of trade; and the words, sailed on or about the 15th, are equivocal, and parol evidence is admissible to explain their meaning according to the understanding and usage of trade. The word “ about” is a relative term, and quite indefinite. (1 Phill. Ev. 562, and Oowen and Hill’s 1STotes, 1359,1399; 1 Holt 95, and reporter’s note ; Birch v. Deg)eyster, 4 Camp. 385; Idle v. Thornton, 3 Camp. 274 ; Powell v. Norton, 2 Bing. 1ST. C. 668; Mayor, che. v. Butler, 1 Barb. S. C. Rep. 334, 635 ; Bobertson v. Jackson, 2 M. Gr. & Scott 413 ; Chitty on Cont. 76, &e.)
    2. The contract is a mercantile contract, and the words, (for the purposes of this suit,,) were technical, and have reference to the length of the voyage ; and evidence of persons skilled in the trade was therefore admissible to explain their meaning as to the time of sailing. (Lilly v. Ewer, Doug. 74; Tctylor v. Briggs, 2 Carr and P. 525; Bridge v. Wain, 1 Starkie, N. P. C. 504; Callaghan v. Atlantic Ins. Co., 1 Edw. Ch. R. 74; None v. Mutual Safety Ins. Co., 1 Sandford 149.)
    3. The testimony of the spring and fall trade, &c., was admissible to show the situation of the parties at the time of making the contract, and the circumstances of the trade under which it was made, with a view to ascertain whether the words “ sailed on or about the 15th ” were a warranty, (or if only a representation,) whether it was a material one on which the parties relied, making an essential part of the contract; and this, whether the sailing on the 26th, under a contract to sail on or about the 15th, was a question of law or fact. (1 Edw. Cli. R. 74, above cited; Simpson v. Henderson, 1 Mood. & Malk 300; Prosser v. Hooper, 1 Moore 106.)
    IV. The charge of the judge was erroneous, because he ought to have charged: — 1. That the words in the contract, “ sailed on or about the 15th March,” were a condition of the contract. 2. That sailing on the 26th was not a compliance. 3. That, if these words were not a warranty, they were such a misrepresentation as would avoid the contract. (Flight v. Booth, 1 Bing. JST. C. 370 ; Hastings v. Lovering, 2 Pick. 219; Osgood v. Leíais, 2 llar. & Gill, 518,521; Jennings v. Chenango Mutual Lns. Co. 2 Denio 80.) 4. He should have submitted to the jury as questions of fact,whether sailed on or about the 15th March, was or was not intended by the parties as a warranty or such a material representation as entered into the terms of the contract, and whether sailing on the 26th March was a sailing on or about the 15th; having consideration to the distance and duration of the voyage and the other circumstances of the case. (2 Denio 80; Whitney v. Sutton, 10 Wend. 413.)
   By the Court.

Oakley, Ch. J.

Tl|¡e only question of serious consideration in this case, is the effect of the statement in the bought and sold note, that the vessel, by which the oil was expected to arrive, “ sailed on or about the 15th March ult.”

The .defendants say, this was in the nature of a condition or a warranty, and that if she did not sail at the time specified, the contract would be void and inoperative against them. On the other hand, the plaintiffs contend, that the words quoted were simply a statement of a fact that was supposed to exist by the parties, neither of them knowing or having the means of knowing, when they contracted, whether the vessel had sailed or not.

The defendants, besides claiming it to he a condition in terms, proposed to introduce evidence that merchants would have so considered it.

This proposition to prove the legal effect of a written instrument, by the opinion of merchants, is a novelty. Possibly, if these words, “sailed on or about” a given day, had acquired any meaning in trade or commerce different from their ordinary import, evidence to that effect might have been admissible ; but that was not the offer. The court is to decide as to the legal effect of the contract, there being no question as to the facts; and the testimony offered was properly excluded.

On the point that there was a condition or warranty, the defendants desired the judge, to submit it to the jury to say, whether the parties did not so -understand the bought and sold note when they contracted ; and, also, to find that the sailing of the vessel, on the 26th of March, was not a sailing on or about the loth of March, as provided in the contract.

The judge rightly declined to submit these matters to the jury, and put the question on the right ground, viz. whether the words referred to were a correct representation of what was understood by the parties on that subject.

The defendants’ counsel strenuously contended, that the words imported a condition precedent, or a warranty that the vessel had sailed as stated. ¥e have no hesitation in holding that, upon its terms, the language used did not import a stipulation ; and from its indefinite character, never could have been understood by the parties as a condition or warranty that the vessel had sailed at the time expressed.

It is very apparent on the face of the contract, that the plaintiffs did not intend, nor did the defendants understand that it was intended, to stipulate or warrant a particular time for the sailing of the vessel.

On this view, the plaintiffs are entitled to recover.

An objection was made to the plaintiffs’ offer to perform on their part. It appeared that the invoice of oil which they were apprised of, and in respect of which they contracted, contained over seven thousand gallons; and they made a written proposition and tender to deliver the whole. That proposal being declined, they qualified it afterwards, by an offer to deliver six thousand gallons out of the seven, if the defendants would take it; or to deliver them the whole of the six thousand at the contract price, and the surplus at the current market price of the oil. It is objected that this parol qualification of the tender made in writing, was inadmissible ; but we see no ground for the objection. The plaintiffs could make their offer orally, as well as in writing; or they could make it in both forms successively. Either mode was good, and they may rely on either. The tender was, in our opinion, complete.

But it is said the declaration did not warrant this proof, because it counted only on the offer to deliver the entire quantity of seven thousand gallons. This point was not raised at the trial. If it had been, the judge would doubtless have permitted the declaration to be amended. We cannot notice the objection here, as the variance between the proof and the averment in the declaration is immaterial.

The motion for a new trial must be denied. 
      
       Affirmed in the Court of Appeals, Dec. 30, 1850.
     