69 So. 707 | Miss. | 1915
delivered the opinion of the court.
This action involves the question of liability between the parties hereto for one thousand four hundred and eighty-eight dollars -demurrage paid by appellee to the
On September 29th thereafter the American Trading. Company forwarded to appellee a copy of the charter party entered into between them and the steamship company owning the vessel Aphrodite, and advising that the ship would report for cargo by December 1st, and that the vessel would likely take advantage of its option of loading one thousand barrels of rosin, thereby slightly reducing the cargo of lumber. The Ingram-Day Lumber Company on October acknowledged receipt of the charter party and made no objection to the arrangement between appellant and the ship company, and offered no suggestion as to changing the time of delivery.
Prior to the arrival of the vessel, and on December 11th, the Ingram-Day Lumber Company made written application to the Gulf & Ship Island Railroad Company, owner of the wharf, for berthing the vessel and advising that the vessel would arrive about December 19th. The vessel did arrive in port December 19th, ready for load
The facts above stated were pleaded in detail by appellant in its notice under the general issue. At the conclusion of the testimony on the trial of the case in the circuit court both parties asked for peremptory instruction. The court granted to plaintiff, appellee here, a peremptory instruction, in pursuance of which judgment was rendered for the full amount sued for.
There was considerable testimony on behalf of plaintiff to the effect that delay in the shipment of several installments of lumber was occasioned by the wrongful acts of certain inspectors of the American Trading Company in refusing to accept certain lots of lumber tendered for inspection at the mills. There is evidence to the effect that certain inspectors of the purchaser refused to accept these lots of lumber, and that thereafter other inspectors of the company reinspected the lumber offered and accepted it. There is no evidence that the refusal of the first inspectors was characterized by willfulness or recklessness, but for some reason not disclosed by the record the inspectors differed as to the grade of the lumber or on the question whether these particular lots of. lumber would bear South American inspection, and this fact according to witnesses for appellee, delayed shipment on some of the lumber from the mills to Gulfport, the place of loading. The witnesses estimated this delay from sis to eight days. The evidence does not show, however, that this delay in shipment checked or suspended the actual loading of the vessel. In other words, it is uncertain from the testimony whether during the particular time of this delay the vessel had ac
It is the contention of counsel for appellee that the Ingram-Dav Lumber Company was not bound by the terms of the charter party, and therefore was not obligated to deliver this lumber within the lay days of the vessel. While the Ingram-Day Lumber Company was not a party to this contract between the charterer and the owners of the vessel, it manifestly appears that the company waived its right to deliver the cargo for November loading as originally stipulated for in the contract for the purchase of the lumber, and thereafter acquiesced in the plan of appellant to charter and present for loading this very vessel Aphrodite, and undertook to deliver the entire cargo according to the requirements of the ship." A copy of the charter party was furnished appellee, and certainly placed appellee upon notice of the intended arrival of the ship and the time within which the ship expected to load. Mr. Mitchell, secretary and general manager of appellee company, testified that he examined to some extent the charter party, saying:
“I looked at it to ascertain the demurrage; this is in ■ one clause. I familiarized myself with those .features. ”
Upon being asked why he familiarized himself with those features, he responded: !
“Because my customer was interested in those features, and I knew it was a matter of dollars and cents to him if not complied with.”
The original contract for the purchase of the lumber does not expressly provide for a delivery by installments. When appellee, therefore, undertook to deliver the lumber for this particular vessel, and long after the time stipulated for delivery in the written order it thereby obli
It is further contended by counsel for appellee, and seems to have been the holding of the court below, that the acceptance of certain installments of this lumber after the vessel went on demurrage constitutes a waiver on the part of the time for delivery and all damages incident to delay. We do not so hold.
‘ ‘ A right of action for damages for breach of contract arises on the failure of the seller to deliver the goods as agreed or for a delay in delivery. In the case of a partial delivery an action for damages will lie for the part not delivered, the acceptance of the partial deliveries being no waiver of the breach.” Cyc. vol. 35, p. 615.
A waiver is to be determined by the circumstances of , each particular case. In this instance a refusal to accept the last installments might have resulted in the ship
“Aphrodite E. P. 6785. We inclose charter party covering this steamer, which we estimate will report about the 1st part of December for cargo,” etc.
In response appellee writes:
“We have your favor of the 29th inclosing charter party for your order No. 6785 steamship Aphrodite.”
The actions of the parties thereafter show, that appellee understood the cargo was to be loaded. While the stevedore company had the contract to do the loading ■and was paid by appellant, it yet remains that appellee contracted to deliver a ‘ ‘ stedmer cargo ’ ’ in time to be loaded in November. This is followed by the action of appellee in making application for the- berthing of the vessel and in undertaking to control the berthing. When the cargo is finally aboard, the bill of lading and inspection certificate designate appellee as the shipper of the cargo “for account of American Trading .Company,” and on the faith and verity of these documents appellee drew sight draft for the purchase price.' The original contract, therefore, must be interpeted in connection with the corespondence of the parties and the construction which they by their conduct have placed upon it. It appears to us that the real undertaking of appellee was to furnish this particular vessel with a sufficient cargo of lumber according to the specification and assortment provided for in the written order; in fact, it was the shipper of the cargo for the account of appellant. The evidence shows that appellee had the right to control the bill of lading until it received its money.
The evidence of the plaintiff must be, upon its application for a peremptory instruction, taken most strongly against it; and, according to the estimate of plaintiff’s witnesses, the delay complained of on account of inspection would not consume the entire eight days’ demur-rage. Furthermore, even though appellant did not at
‘ ‘ The principle is firmly settled that the party injured by the breach of a contract can recover only such damages as by reasonable exertion and expense he could not prevent. . . . The law, for wise reasons, imposes upon a party subjected to injury from a breach of contract the active duty of making a reasonable exertion to render the injury as light as possible. Public interest and sound morality accord with the law in demanding-this; and if the injured party, through negligence or willfulness, allows the damages to be unnecessarily enhanced, the increased loss justly falls upon him. ’ ’
It was error, therefore, to grant appellee a peremptory instruction.
We think the judgment of the lower court should be reversed, and the cause remanded.
Reversed $ remanded-