finding that, where changes to an original contract must be in writing, any modifications to that contract must also be in writing
How later courts described this case
- finding that, where changes to an original contract must be in writing, any modifications to that contract must also be in writing
Written by the judges who cited it.
The opinion
Thompson and Dunn, JJ.,
dissenting:
The contract in question provided for “shipment from the Orient, 75 cases in April,” which, as the authorities hold, means placing on board ship during the month of April. The contract did not say anything about the time of delivery, and a discussion of whether the change in time of shipment affected or might have affected the time of delivery has no place in this case. The parties had the right to contract for shipment in April, and having entered into such a contract the purchaser has the right to insist upon its fulfillment. A shipment on March 31 was no more a shipment in April than a shipment on January 31 or May 31. What was sold was not merely seventy-five cases of albumen of a certain quality, but was seventy-five cases of albumen to be put on board ship in the month of April. Albumen put on board ship in any other month is not the article sold. Where the purchaser contracts to buy rice shipped in March he is not obliged to take rice put on board ship in February, although the ship sails in March. (Bowes v. Shand, 2 App. Cas. 455.) Where the article sold'is pig iron to be shipped from Glasgow, the seller can not compel the buyer to accept pig iron shipped from Leith. (Filley v. Pope, 115 U. S. 213 .) Where the parties bargained for a “shipment from Java to Philadelphia,” the buyer may refuse to accept sugar shipped from Java to New York and later diverted to Philadelphia. (National Bank v. Lamborn, 2 Fed. — 2d ser. — 23.) The courts have neither the means nor the right to consider whether there is any substantial reason why the parties described the article sold by fixing the time or place of shipment. Merchants usually attach some value to stipulations they place in their contracts, and the purchaser has the right to demand delivery, according to contract, of the article he buys and not some other article. If the article tendered is different in any respect from the article bargained for the purchaser is not bound to take it. Equally good albumen might have been shipped in March or May, but the parties chose, for reasons sufficient to themselves, to contract respecting albumen shipped in April and such 'albumen is all the purchaser is obliged to take. The only safe rule is to allow competent persons to make their own contracts. It is the duty of the courts to adhere to the terms used and to enforce a contract as it is written.
For these and other reasons unnecessary to set forth we respectfully dissent.