Dingley v. Oler

This was an action of assumpsit, brought by Dingley Bros. in the superior court of the county of Kennebec, in Maine, against W. M. Oler & Co., of Baltimore, to recover damages for the alleged breach of an agreement, whereby it was averred the defendants undertook and promised, in consideration of 3,245.25 tons of ice delivered to them by the plaintiffs in 1879, to return and deliver to the plaintiffs the same quantity of ice from the defendants' ice-houses, in the year 1880. The case was removed by the defendants into the circuit court of the United States for the district of Maine, when the cause was put at issue by a plea of non assumpsit, and was submitted to the court by the parties, the intervention of a jury having been duly waived. The court made a special finding of the facts, and, in pursuance of the conclusions of law based thereon, rendered judgment in favor of the plaintiffs for the sum of $7,335.35. Exceptions were taken by each party to rulings of the court, on which errors are assigned, the cause being brought here for review on writs of error sued out by the respective parties. The court found as matter of fact, that late in the season of 1879 the plaintiffs, finding themselves in possession of a large quantity of ice undisposed of, and which threatened to be a total loss, pressed the defendants to buy some or all of it. Both parties were dealers in ice, cutting it upon the Kennebec river, and shipping it thence during the season; that is, while the river is open. The offers of the plaintiffs were rejected, but the defendants, by their letter of sixth September, 1879, made a counter offer to take a cargo and 'return the same to you next year from our houses.' The plaintiffs, by their letter of September, 1879, accepted this offer, and several cargoes were delivered upon the same terms. The total delivery was 3,246.25 tons.

In July, 1880, one of the plaintiffs spoke to one of the defendants about delivering the ice; and he replied that he did not know about that,-delivering ice when it was worth five dollars a ton, which they had taken when it was worth fifty cents a ton, but he promised to write an answer. July 7, 1880, the defendants wrote, repeating their objections, and saying, among other things, 'we must therefore decline to ship the ice for you this season, and claim as our right to pay you for the ice in cash at the price you offered other parties here, (that is, fifty cents,) or give you ice when the market reaches that point.' The plaintiffs, tenth July, 1880, wrote that they had a right to the ice, and had sold it in expectation of its delivery, to which the defendants answered fifteenth July, 1880, reciting the circumstances of the case, and the hardship of such a demand, and again denying the obligation. The letter contains this sentence: 'We cannot, therefore, comply with your request to deliver the ice claimed, and respectfully submit that you ought not to ask this of us,' etc., asking for a reply or a personal interview. Neither appears to have been given, and this action was commenced July 21, 1880. The court further found that ice was worth five dollars a ton in July, 1880, and fell later in the season to two dollars a ton.

Thereupon the court held, as matter of law, that there was a contract executed by the plaintiffs, and to be executed by the defendants, who were bound to deliver 3,245.25 tons of ice from their houses on the Kennebec river during the year 1880; that the year means the shipping season; and that the defendants had the whole season, if they chose to demand it, in which to make delivery; and that the letters of July 7th and 15th, from the defendants to the plaintiffs, contained an unequivocal refusal to deliver any ice during the season; that the defendants having unqualifiedly refused to ship the ice, this action can be maintained, though brought before the close of the season, but that the damages are not to be reckoned by the price of ice in July; that what the plaintiffs lost was 3,245.25 tons of ice sometime during the season; that the price of ice went down after July to two dollars a ton, and the measure of damages must be reckoned at this rate, with interest from the date of the writ.

To these conclusions of law the plaintiffs below excepted, contending that the right to fix the time for delivery under the contract had vested in them; that it was properly exercised by their demand in July, 1880; that the refusal to deliver at that time constituted the breach of the contract by the defendants, and fixed the damages at five dollars per ton, the market value of the ice on that day.

The defendants below excepted, contending on their part that the letters of July 7th and 15th did not constitute an unequivocal refusal to deliver any ice during the season, amounting to a renunciation, and, in that sense, a breach of the contract; and that the action was prematurely brought, the right of action, if any, not accruing until after the expiration of the period within which, by the terms of the contract, they had the option to deliver.

The letter of July 7, 1880, from the defendants to the plaintiffs, is as follows:

'BALTIMORE, MD., seventh July, 1880.

'Messrs. Dingley Bros., Gardiner, Me.-DEAR SIRS: As per     promise of our W. M. O., we write you concerning the ice we      got from you last fall. We have before us the whole of the     correspondence on that head, and note throughout the same      that you promise to stand between us and any loss. We quote     from yours of September 9, 1879, on this head, as follows: 'In fact, we do not propose for you to become losers on      account of extending us this accommodation.' Our W. H. O.      does not remember your having spoken to him while at Gardiner      about your intention of selling the ice, and was very much      surprised when informed that you had done so. We are very     sorry, indeed, that this question should have arisen between      us, who have been on such friendly terms hitherto; but we      feel that it is not just or equitable for you (in      consideration of the ice being used by us only upon your      earnest solicitation, and upon your representation that you      would loose the whole unless we assisted you by taking some)      to expect us to give you ice now worth $5 per ton when we      have letters of yours offering the ice that we got at fifty      cents per ton. We must therefore decline to ship the ice for     you this season, and claim as our right to pay you for the      ice, in cash, at the price you offered it to other parties      here, or give you ice when the market reaches that point. Again expressing our sincere regret that any complication     should arise between us, and assuring you of our innocence in      the matter, we are,

'Yours, truly,

W. M. OLER & CO.'

The letter was answered by Dingley Bros., on July 10, as follows:

'GARDINER, July 10, 1880.

'Messrs. W. M. Oler & Co., Baltimore-DEAR SIRS: Yours of 7th     is in hand, and we must say the conclusion you have come to      greatly astonishes us. Our sole object in making this     exchange, no one knows better than yourselves, was to tide us      over to such a time during this season as the ice could be      marketed at some reasonable figure, and in confirmation of      this we refer you to your proposition, made under date of      September 6th, viz.: 'It would, of course, be more convenient      for us to ship this cargo from our own houses; but      remembering past favors, we feel inclined to assist you in      your present difficulty, and will load this cargo from your      house, should our terms be agreeable to you.

We, of course, do not entertain the idea of buying, having a     superabundance on hand, but will take this cargo, and return      same to you next year from our houses.' Upon this we have      acted, and in the utmost good faith made sale of the ice; and      now, after all of this, and having refused to buy it      yourselves, for you to ask a postponement in the delivery      seems to us hardly right. Now, whatever the final settlement     of this matter is to be, we want you to fill our order;      otherwise, we cannot tell what the result might be. It is not     in our minds to do otherwise than right with any one, and      certainly with yourselves; and it is our great desire not to      get complicated with the third party in that matter; and      assure you that your regrets cannot exceed ours that there      should have arisen any difference of opinion concerning this      affair, and certain it is that neither of us can afford to do      wrong by the other in it; and hoping you will take a more      favorable view upon further reflection, we remain,

'Truly yours,

DINGLEY BROS.'

The defendants' letter of July 15th was in reply to this, and is as follows:

'BALTIMORE, MD., fifteenth July, 1880.

'Messrs. Dingley Bros., Gardiner, Mr.-GENTLEMEN: Yours of     10th duly received, and in reply would state that our desire      to do right is quite as sincere and earnest as your own, and      that we regret our inability to see the matter referred to in      the same form in which you state it. The case, briefly     stated, appears to us thus, as we think the correspondence of      last year will show: being very much troubled with the      quantity of ice left on your hands by an unfortunate contract      with the Messrs. Barker, you repeatedly urged and importuned      us to help you out, and promised us if we would do so that no      loss should result to us from the transaction. Under these     assurances, we at length agreed, purely for your      accommodation and relief, to take one cargo, and later, under      the same influences, took more. Now you ask us, at a time when we are pressed by our sales and by short     supply, threatening us and others, to deliver to you the      equivalent in tons of the ice taken from you under the      circumstances stated. This does not seem to us to be fair,     and certainly does not comport or agree in any way with your      agreement to protect us from loss by means of the favor we      were intending to do you. We are reluctant to have a     disagreement or difference of opinion with old friends, but      regard it our duty to protect our own interests, always,      however, with a proper regard to the dictates of right. We     cannot, therefore, comply with your request to deliver to you      the ice claimed, and respectfully submit that you ought not      to ask this of us in view of the fact stated herein and in      ours of the 7th. You do not reply to our arguments, but     simply ask us to surrender our well-formed opinion. Can you     reasonably ask us to do this? Is not your usually clear and     equitable judgment clouded by the manifest considerations of      self-interest pressing upon you? We beg you to consider anew     all the circumstances of the transaction and your assurances      to us as inducements to make it with you, and cannot doubt      that you will be led thereby to admit that your request is      not reasonable. We will be glad to hear from you in reply,     but would be more pleased to have a personal interview, and      venture to suggest that you come here for the purpose. Our     business is now more active and confining than ever before. We are deprived of the services of W. Geo., and therefore     cannot come to see you. With regards, we are,

'Yours truly,

W. M. OLER & CO.'

To this letter no answer was returned, and the present suit was brought six days after its date.

Orville Dewey Baker, for Dingley Bros.

[Argument of Counsel from pages 496-500 intentionally omitted]

Bernard Carter, for Oler & Co.

MATTHEWS, J.