Page:Federal Reporter, 1st Series, Volume 9.djvu/80

 POPE V. FILLBY. 66 �Pope and anotlier v. Pillbt. {Uireuit Court, E. D. Missouri. October 3, 1881.) �I. COSTRACT OB' SaIB CoNSTBtTBD— Lex LoCI CONTBACTUS — EviDEKCB, InADMIS- SIBII.ITT OP PaROL, TO ADD TO A WaiTTEN CONTKACT— BUBDEN OP PbOOP �— BxPBET Testimoht — Measurb OP Damages. �Where a contract of sale was entered into in Bt. Louis, whereby the vendors agreed to ship the vendee 500 tons of " No. 1 Bhott's Scotch pig-iron * * « from Glasgow, as soon as possible," and deliver it to him in bond at New Or- leans, for |26 per ton ; and they shipped that amount of iron from Leith, and tendered it to the vendee, who refused to accept it, and the vendors thereupon had it sold by a broker for all it would bring, and sued the vendee for dam- ages, — hdd, �(1) That the burden of proof was upon the ♦•endors to show that they had fully complied with the terme of the contract on their part. �(2) That the fact that the iron was shipped from Leith instead of Glasgow was immaterial. �(3) That it was necessary for the vendors to show a compliance with the con- tract as to time of shipment, but that " shipment * * * as soon as possi- ble " meant as soon as possible by any ordinary mode of transportation. �(4) That paroi evidence was inadmissible to show that, by the custom of mer- chants, shipment should be by sail, unless it is specifled that it shall be bj steam. �(5) That the term "No. 1 Shott's Scotch pig-iron," as used in said contract, should be understood as having the meaning usually given it by persons en- gagea in the iron trade in St. Louis. �(6) That evidence was inadmissible to show what, in the opinion of mer- chants and business men in Glasgow, the contract means. �(7) That the vendors could not recover unless they proved a tender of iron of the quality called for by the contract. �(8) That the only persons who were competent to testify as experts concern- ing the quality of the iron were those who had given the subject of manufac- turing and testing iron special attention, and had experience in the art, and had examined the iron in question. �(9) That evidence of the manner in which "No. 1 Shott's Scotch pig-iron" is examined and marked at the foundry, was inadmissible for the purpose of showing the quality of the iron tendered. �(10) That in case the vendors showed a compliance on their part with the terms of the contract, and a refusai on the part of the vendee to accept the iron, the measure of damages would be the difference between the contrdct priee, together with interest thereon from the date of the tender, and the price for which the iron was sold, less the ordinary and usual commission paid brokers for negotiating such sales. �McCrary, C. J., in ruling upon objections to portions of depositions ojfered in evidence by the plaintiffs, said : �I have considered the objections to certain portions of the deposi- tions of witnesses sworn on behalf of plaintififs, and my conclusions may be stated generally as f ollows : v.9,no.2— 5 ��� �