Page:Federal Reporter, 1st Series, Volume 9.djvu/83

 68 FEDERAL REPORTER. �would be the difference between the price at whicb the iron was sold, to-wit, $15 per ton, and the contract price, $26 per ton; also, in addition to that, the reasonable expenses of the resale, which would be the ordinary and usual commission of the broker, not necessarily the sum that was agreed on between the broker and these plaintiffs, because that would not bind the defendant, but the ordinary and usual commission would be all that could be recovered. �Mr. Hitchcock. There is no dispute about that ; I will say 2^ per cent. �Jvdge McCrary. Which would be, according to the testimony here, 2^ per cent, on the amount of the sale; so your inquiry here, gentle- men, must be simply into the question of whether these plaintiffs complied with the contract upon which this suit is brought. �One of the provisions of the contract is that the iron was to be ehipped from Glasgow, and I instruct you, as a matter of law, that that is not a material provision of the contract so far as this contro- versy is concerned. The purpose of the contract was the sale, by the plaintiff to the defendant, of a certain quality of iron, to be delivered in a certain time, at a certain place, and the fact that it was shipped from Leith instead of Glasgow is not material to the rights of the parties in this case if the other provisions of the contract were all complied with ; so that that provision of the contract need give you no trouble. It is agreed here, and not questioned, that the iron was shipped from Leith instead of Glasgow. �Another provision of the contract is that the iron should be shipped as soon as possible, and upon this there has been some controversy, and it will be for you to decide whether, under the evidence, the iron was shipped by the parties in Scotland, who acted on behalf of these plaintiiis, as soon as possible after the order was received. �The meaning of that clause of the contract is that these parties were to use all reasonable diligence to ship as soon as possible. The time in such a case is of course important, and it was especially important in this case, because the parties saw fit, in their contract, to say that the iron should be shipped as soon as possible ; but, if it was shipped by the first conveyance that could be had, and due dili- gence was used, then- that part of the contract has been complied with. �The main controversy is, as you have already seen in the course of the testimony, as to whether the iron which was shipped to New Orleans and tendered to the defendant was of the quality designated and described in the contract, to-wit, No. 1 Shott's Scotch pig-irou. ��� �