[196 U.S. 157, 158] Messrs.L. T. Michener and W. W. Dudley for appellant.
[196 U.S. 157, 160] Mr. Philip M. Ashford and Assistant Attorney General Pradt for appellee.
Mr. Justice McKenna delivered the opinion of the court:
The appellant is a general commission merchant and shipper at San Francisco. He filed his petition in the court of claims, consisting of two paragraphs, in the first of which he claimed reimbursement from the United States of the sum of $1,053.36, demurrage paid by him for the detention over lay days of two ships chartered by him to transport coals to Honolulu, and there to be delivered to the United States. By the second paragraph he prayed the recovery of the sum of $1,120.87, the [196 U.S. 157, 163] difference between the contract price of 366 tons of coal, which the United States refused to receive, and the price obtained for the same upon the sale in open market.
The causes of action rested on two contracts entered into by appellant with the United states through the proper officer of the Quartermaster's Department, United States Army, by which appellant agreed to furnish and deliver to that department Honolulu, Hawaiian islands, 'at the wharf,' about 3,900 tons of the best merchantable 'Wallsend' Australian steam coal, at the rate of not less than 100 tons a day, at 2, 240 pounds to the ton, dangers of the sea and any causes beyond appellant's control excepted, the deliveries to commence on the arrival of the Hawaiian ship Euterpe at Honolulu, on or about July 23, 1898, for and in consideration of which appellant was to be paid at the office of the Quartermaster, United States Army, at San Francisco, California, at the rate of $9 per ton, in gold coin of the United States.
And by the second contract appellant was to deliver 'on wharf, as customary,' about 5,000 tons of the best merchantable Australian, Seaham, Wallsend, or Pacific Cooperative steam coal, deliveries to commence at Honolulu on or about October 1, 1898. The other facts were found by the court of claims as follows:
As a conclusion of law the court decided that appellant was not entitled to recover. 38 Ct. Cl. 590.
The question in the case is whether the delay at Honolulu in the delivery of the coal was caused by the United States or by appellant; or, in other words, whether it was the duty of [196 U.S. 157, 166] the United States to designate and furnish a wharf for the discharge of the coal from the ships, or its duty only to receive the coal at the wharf when delivered there by appellant.
The question is one of law. Any fault in fact upon the part of the United States is excluded by the findings of the court. The cause of delay is expressly found to have been due to the conditions in Honolulu harbor, and that to these conditions the United States was as subordinate and subject as appellant. The liability of the United States is asserted, nevertheless, on account of the custom existing in San Francisco between shippers and shipowners.
But the terms of the contracts are explicitly opposite to the custom. The custom requires a consignee to designate a berth for the discharge of cargo, and is hence responsible, it is contended, for the delays to a ship in reaching the berth, though caused by the conditions existing at the port of discharge. The contracts have no such provision, nor do they refer to the charter parties entered into between claimant and the ships. The contracts require delivery to be 'at wharf' (first contract); 'on wharf as customary' (second contract). 'As customary' meant the mode of discharging freight at Honolulu. Culver, Carriage by Sea, 696. The custom there was to discharge freight upon the wharves. The terms of the contracts, therefore, are reinforced by the custom at Honolulu, and the custom at San Francisco cannot prevail against them.
The effect of usage upon the contracts of parties has been decided many times. It may be resorted to in order to make definite what is uncertain, clear up what is doubtful, or annex incidents, but not to vary or contradict the terms of a contract. Various applications of this principle are presented in the following cases: Barnard v. Kellogg, 10 Wall. 383, 19 L. ed. 987; Hearne v. New England Mut. Marine Ins. Co. 20 Wall. 488, 22 L. ed. 395; Orient Mut. Ins. Co. v. Wright, 1 Wall. 456, 17 L. ed. 505; Oelricks v. Ford, 23 How. 49, 16 L. ed. 534; Hostetter v. Park, 137 U.S. 30 , 34 L. ed. 568, 11 Sup. Ct. Rep. 1; First Nat. Bank v. Burkhardt, 100 U.S. 686 , 25 L. ed. 766. We do not think it is necessary to make a detailed review of these cases or of the cases which appellant has cited in which [196 U.S. 157, 167] consignees have been charged with demurrage. To trace and relate the various conditions upon which consignees have been held liable would extend this opinion to too great length, and discuss matters irrelevant to the case as we regard it. In all of the cases cited there was an omission of duty on the part of the consignees. In the case at bar there was no omission of duty, and, besides, the United States was not a consignee of the coal in any proper sense of that word. There was no privity between it and the ships. Its contract was to receive coal at the wharf, and pay for it on delivery there, after inspection. Its contract was not to receive coal in lighters, or to bear any expense in the transportation to the wharves. It is manifest that coal on board ships in a harbor is not in the same situation as coal on a wharf. The wharf, under the contract, was the place of destination, and the appellant took the chances, as observed by the court of claims, of obstacles which should intervene to delay the delivery of the coal at the wharf, as they did of other obstacles which might have intervened to prevent the coal reaching the harbor. It was not strictly the coal in the ships that the United States contracted to take. It was certain quantities of coal, and on account of this, in the exercise of their rights under the second contract, appellant bought coal in the open market and tendered it in fulfilment of that contract. The liability of the United States to accept we shall presently consider. We cite the fact now as illustrating the meaning of the contract. It is manifest, from these views, the court of claims was right in holding the United States was not liable for the delay caused to the ships by the conditions which existed in Honolulu harbor.
2. By the terms of the second contract (June 23, 1898) the appellant agreed to deliver and the United States agreed to 'receive about 5,000 tons' of coal, delivery to commence with about 2,200 tons, to arrive at Honolulu on or about the 1st day of October, 1898. By the 7th of October delivery was made of 4,634 tons. About a month subsequently appellant purchased 366 tons of coal of a ship then in the harbor, [196 U.S. 157, 168] and tendered the coal to the United States in fulfilment of the contract to deliver 5,000 tons. The United States refused to receive it, and appellant sold it in the open market for $3.06 1/4 per ton less than $9, the contract price. This was the best price which could be obtained, and the loss to appellant was $1,120.87. The court of claims held that the appellant was not entitled to recover. We think this was error. The obligations of parties were reciprocal; one to deliver, the other to receive, about 5,000 tons of coal, and equally reciprocal is the liability for nonperformance of the obligations. The only question can be, Is 366 tons less than 5,000 tons, 'about 5,000 tons?' We think not. The difference is too great. We said in Brawley v. United States, 96 U.S. 168, 172 , 24 S. L. ed. 622, 624, that in engagements to furnish goods to a certain amount the quantity specified is material and governs the contract. 'The addition of the qualifying words 'about,' 'more or less,' and the like, in such cases, is only for the purpose of providing against accidental variations arising from slight and unimportant excesses or deficiencies in number, measure, or weight.' See also Cabot v. Winsor, 1 Allen, 546, 550; Salmon v. Boykin, 66 Md. 541, 7 Atl. 701; Indianapolis Cabinet Co. v. Herrman, 7 Ind. App. 462, 34 N. E. 579; Cross v. Eglin, 2 Barn. & Ad. 106; Morris v. Levison, L. R. 1 C. P. Div. 155, 158; Bourne v. Seymour, 16 C. B. 337, 353; Simpson v. Railroad Co. (Sup.) 38 N. Y. Supp. 341, 342.
The record does not inform us why the United States refused the tender, and we must assume that it had no other justification than its supposed right under the contract.
Judgment reversed, and cause remanded with directions to enter judgment for appellant (claimant) in the sum of $1,120.87.
Mr. Justice Holmes concurs in the result.