Supreme Court of United States.
*215 Mr. Henry Hitchcock, for plaintiff in error.
Mr. Edward Cunningham, Jr., for defendants in error.
*219 MR. JUSTICE GRAY delivered the opinion of the court. After stating the facts in the language reported above, he continued:
The contract between these parties belongs to the same class as that sued on in the case, just decided, of Norrington v. Wright, ante, 188, and likewise falls within the rule that, in a mercantile contract, a statement descriptive of the subject-matter, *220 or of some material incident, such as the time or place of shipment, is ordinarily to be regarded as a warranty, or condition precedent, upon the failure or nonperformance of which the party aggrieved may repudiate the whole contract. The provision in question in that case related to the time; in this, it relates to the place of shipment.
The thing sold, and described in the contract, is "500 tons No. 1 Shott's (Scotch) pig iron," to be shipped "from Glasgow as soon as possible." It is not merely 500 tons of iron of a certain quality; nor is it such iron to be shipped as soon as possible from any Scotch port or ports; but it is iron of that quality to be shipped from the particular port of Glasgow as soon as possible. The court has neither the means, nor the right, to determine why the parties in their contract specified "shipment from Glasgow," instead of using the more general phrase "shipment from Scotland," or merely "shipment," without naming any place; but is bound to give effect to the terms which the parties have chosen for themselves. The term "shipment from Glasgow" defines an act to be done by the sellers at the outset, and a condition precedent to any liability of the buyer. The sellers do not undertake to obtain shipment, nor does the buyer agree to accept iron shipped, at any other port. The buyer takes the risk of delay in getting shipment from Glasgow, or of delay or disaster in prosecuting the voyage from Glasgow to New Orleans. But he does not take the risk of delay or of sea perils which may occur in the course of the different voyage from Leith to the same destination.
One or two illustrations may help to make this clear. If the sellers had shipped the iron by the first opportunity from Glasgow, the buyer could not have refused to accept it, even if it could have been shipped sooner from Leith. Again; the buyer would have an insurable interest in the iron during the voyage, by reason of the title which would accrue to him under the contract on arrival and delivery, and of the profits that he might make in case of a rise in the market. 3 Kent Com. 276; French v. Hope Ins. Co., 16 Pick. 397; Eastern Railroad v. Relief Ins. Co., 98 Mass. 420, 423. But a policy *221 of insurance upon the iron for a voyage from Glasgow would not cover a voyage from Leith. Murray v. Columbian Ins. Co., 4 Johns. 443; Manly v. United Ins. Co., 9 Mass. 85.
This view of the case renders it unnecessary to consider the other questions raised at the trial and argued at the bar, and requires the
Judgment of the Circuit Court to be reversed and the case remanded, with directions to order a new trial.
