Page:Federal Reporter, 1st Series, Volume 9.djvu/82

 POPE V. FILIiBY. 67 �Plaintiffs sue the defendant upon a written contract, and allege that the defendant has failed to comply with his obligations as expressed in that contract. The contract is very brief, and is in the following words : �"SALE MEMOEAITDUM. �"St. Louis, February 20, 1880. "Thomas J. Pope & BrotJier, New York: Have sold for your account to Mr. O. B. Pilley, in St. Louis, 500 tons TSo. 1 Shott'8 Scotch pig-iron, at $26 per ton, cash, in bond at New Orleans; shipment from Glasgow as soon as possible; delivery and sale subject to ocean risks. �" Tours, truly, Millard «Sfc Combs." �This is the contract. The allegation of the plaintiffs here is that, in pursuance of that contract, they caused to be shipped the iron mentioned in that contract, of the quality described, and within the time required, which iron -v^as, they allege, delivered in New Orleans in bond, in accordance with the agreement, and tendered to the defendants, who refused to take it. �There is no dispute about someof the questions which are involved in this case. The execution of this contract is admitted. The ship- ment of 500 tous of iron from Leith to New Orleans is admitted^ The tender of this iron to the defendant is admitted, and his refusai to accept is admitted. �The principal controversy arises upon the question whether plain- tifs themselves have fully complied with the terms of their agree- ment, and that is the question for you to determine upon the facts in the case, in accordance with the law as the court will give it to you. I say to you, however, as preliminary to that, that if it appears from the proof, to your satisfaction, that plaintiffs did comply with the contract on their part, and that the defendant refused to take the iron after the plaintiffs had bo complied, then it was the privilege and the right of the plaintiffs to sell the iron in the market for the best priee it would bring, and to charge the defendant with the differ- ence between what it brought in the market and the price which he was to pay for it. �I believe there is no dispute, either, as to the price the iron brought. It was sold, I think, according to the testimony, at $15 per ton. The price named in this contract was $26 per ton ; so if you find that the plaintiffs did comply with their part of this agreement, in all its material provisions, and that, notwithstanding that compliance, defendant failed to accept the iron when it was tendered to him; your verdict would be for the plaintiffs, and the amount of your verdict ��� �