I think that the demurrer of the defendant should have been sustained for the reasons which follow.
I think that paragraph 3 of the contract has nothing at all to do with the controversy. It provides for two distinct options which are open to the plaintiff, in the event of the defendant's failure to order or accept shipments of coal for each month as agreed. One option is, under these circumstances, to reduce the tonnage contracted for (2,000 tons) to the extent of the quantity which the buyer may have refused to order or accept. The other option, under the same circumstances, is to reduce the monthly installments for the succeeding months to the minimum tonnage taken in any preceding month. Both of these are valuable *Page 354 to the shipper, in the event that the coal market may advance; he may either reduce the total tonnage contracted for or place a limit upon the shipments for any month.
The plaintiff is making no effort to avail himself of either of these options. Obviously, the coal market has declined and it is consequently to the interest of the shipper to waive both of these options and insist upon his legal right that the defendant shall take or account to him in damages for the entire tonnage contracted for. Paragraph 3, therefore, as stated, is like the flowers that bloom in the spring; it has nothing to do with the case.
Paragraph 5 is the troublesome feature of the case. It provides:
"Shipments made by the seller to the buyer any one month shall constitute fulfillment of this contract for that month, and the tonnage herein contracted shall be cumulative only for such one-month period, except by mutual agreement."
The first criticism I have of this paragraph is that the shipper may ship any quantity he may wish during any month, one car even, and claim the protection of this paragraph that such a shipment constitutes a fulfillment of the contract for that month; that is what it says. By this (doubtless fine print) clause, the shipper finds a loophole through which he can escape the losses incident to an advancing market. For this reason the contract lacks mutuality. The question has so lately been fully discussed in the case of International Shoe Co. v. Herndon, 135 S.C. 138;133 S.E., 202, that I will make only a reference to that case.
The last clause in the paragraph:
"And the tonnage herein contracted shall be cumulative, only for such one-month period, except by mutual agreement" —
has given rise to the greatest divergence of opinion as to what it means. *Page 355
Some confusion has arisen as to the meaning of the word cumulative. I think that an illustration will throw more light upon its meaning than an etymological dissection. Dividends upon common stock in a corporation are forever lost when the directors decline to declare them, when they are passed, as the expression is. They cannot be considered as debts of the corporation. With preferred stock, it is usual to provide that the dividends at a certain rate shall be cumulative; that is, whether declared or not, they become debts of the corporation and bear interest. So with shipments under the contract in question; the weekly shipments, without express agreement, become cumulative within the month and are obligations on both parties; they do not become cumulative after the expiration of the month without express agreement.
Mr. Justice Stabler construes that clause as follows:
"Under our view of the case, paragraph 5 simply means that any coal due to be shipped, but not shipped, in any one month, would not be `cumulative,' without the consent of both parties, at any time subsequent to such month and prior to the closing date of the contract period, but shipmentsthereof could be distributed over the remaining portionof the contract period."
The first part of this statement is unquestionably correct; but I differentially suggest that the portion underscored by me is in direct conflict with what precedes it.
My construction of the clause is that the deficiency in any one month's shipments, although not made weekly, may be made up by the shipper or demanded by the buyer, within that month, but not afterwards, in the absence of an express agreement subsequently entered into. For instance, four weekly shipments are required in each month; by the 29th, only one may have been made; either party may then require the other three within the month, but not afterwards. If the first shipment is not made in the first week, the second shipment and the first may be made *Page 356 in the second week; if not made, the third and the other two may be made in the third week; if not, the fourth and the other three may be made in the fourth week. In other words, only the weekly shipments are cumulative, without agreement.
It must be remembered that these contracts are formulated by the shipper, and every provision that he can get by with for his benefit is inserted. This clause was thus inserted, manifestly, to relieve him from the obligation of cumulating other than the weekly shipments, to relieve him entirely of the deficiencies in shipments after the month in which they were due had expired. It so happens that, in this case, the provision is applicable to the buyer as well as to the shipper; if the shipments, after the expiration of the month, do not become cumulative as a protection to the seller, they should not become so as a protection to the buyer.
The whole case for the plaintiff rests upon the cumulative character of the deficient shipments, which according to the terms of the clause, does not exist except by agreement. This essential is not alleged in the complaint.
The plaintiff's contention is that the defendant agreed to accept deliveries, weekly, during each month; that it failed to order or accept deliveries for September and each of the following months, with the exception of November; that, consequently, it owes the plaintiff damages for such breach. The defendant contends that, under paragraph 5, the plaintiff might have made the shipments for any one month, September, for instance, cumulative, and have insisted upon its right to deliver the four cars for that month at any time within that month; but that it did not make any such claim or demand, and that it cannot now make the shipments for any one month cumulative in the absence of an express agreement.
I have little sympathy for either of the parties to this contract. It appears to be one of unfortunately many instances *Page 357 of the kind where one party has been caught in the toils of an untoward market and is seeking a way out. But, if he is entitled to relief under the terms of the contract, the Court is bound to afford him that relief.
Suppose conditions had been reversed, and, instead of declining, the market had advanced. We would then have a suit by the mill against the coal company for failure to deliver. The coal company would have insisted upon the terms of the contract which it had formulated; that the deliveries for certain months were cumulative only within that month; and their defense would have been sustained. It is a poor rule that will not work both ways. If under circumstances, it would have been sauce for the coal company, under opposite circumstances, it should be sauce for the mill company.