Atwell v. Miller, 11 Md. 348

Atwell v. Miller

11 Md. 348 | Md. | 1857

Le Grand, C. J.,

delivered the opinion of this court.

This action was brought by the appellee to recover of the appellants the sum of $527.29, with interest, for money paid, in advance, by the appellee to the appellants, for freight on goods contracted to be carried by the appellants from Baltimore to Monrovia, Liberia. By the agreement, of counsel filed in the cause, it appears that the goods upon which the freight was paid in advance, were shipped on board the appellants’ vessel (the brig “Harp,”) according to the tenor and effect of the bill of lading, dated 9th of June 1854, and that the vessel having the goods on board sailed on the 13th of June of the same year; that it was shipwrecked in the Messurado Roads, occasioning thereby, a loss of a part of the goods and damage to the remainder.

The question presented to the court below may bo thus stated: first, whether the declarations of a person, he being a negro, can be givenin evidence where a white person is interested ? second, whether under the circumstances detailed in proof, the plaintiff below was entitled to recover the money which had been paid in advance"?

The proof shows, that in the month of May 1854, the appellants, who were the owners of' the brig Harp, were loading her for the coast of Africa, and were applied to by the appellee, in regard to the rate of freight by said vessel. To this application reply was made, “that the current rates to Monrovia were $2 per barrel, measuring five feet, or in other words 40 cts. per foot cubic.” Sometime after this, the appellee put on board the Harp a quantity of cargo, measuring in all 13.529 cubic feet, according to the receipt for the same, The bill of lading stated, that this cargo was shipped by the appellee and was to be delivered at Monrovia, (the dangers of the sea excepted.) to one Asbury F. Johns, or assigns, “the shipper paying freight for the said goods at the rate of 40 cts. per cubic foot, with five per cent, primage, and average ac*358custómed;” and it was further stipulated that the goods should “be delivered at ship’s tackle, vessel paying kroomen’s labor taking them to shore, but goods at risk of owners thereof after leaving vessel, boats for landing furnished and controlled by owners of goods.” The bill of lading was signed by the captain, on or about the 9th of June 1854. A bill of freight, dated the 8th of June 1854, was presented to the appellee. The amount of this bill was §570.95, and was for 13.529 cubic feet of cargo, at 40 cts. per foot, §541.10, wharfage hire, §5.40, primage §27.32, less 30 days’ interest §2.87. This bill was not paid until the 12th of June, nor until after a deduction of §43.66, which is stated in the receipt to be as “per agreement,” leaving a balance of §527.29, the sum sued for and recovered below. At the trial the appellants by their clerk, the witness Smith, proved that, on the 10th of June, the appellee came with his father, (who was acting for him in reference to the shipment,) to the counting-house of appellants, both of whom .were present, and that then the appellee objected to the measurement and to the charge for primage, and said, “he ought to be allowed a deduction (in the freight bill) because he had, to take the risk of the freight money himself;” that Atwell then said “he would take no risk, it was at the parties own risk; that he would not insure the freight, and that if they, (the appellee and his father,) were not satisfied with the terms he would rather set the goods on the wharf.” The same witness further testified, that during the same interview and in the same presence, and before the freight was paid, that “Miller did not ask security for return of freight money in the case the vessel was (were) lost,” and that Atwell stated, that “he would not return the freight if the vessel was (were) lost.” The witness also testified, that Miller, the father of the appellee, said, that as he had insurance money to pay, he thought the bill unfair. It was in addition stated by the witness, that on the ascertainment of the loss, application was made for the return of the freight money, whereupon Atwell asked Miller, if he did not understand that he, (the appellee,) took the risk, and if he had' not insured ? to which the appellee, without denying that he had taken the risk, admitted “that he had in*359sured and had added 10 per cent., as was customary.” It was proven by Daniel Miller, that the deduction of $43.66, per agreement from the bill of appellants, was made by the appellant, Appleton, with the witness.

It was then shown that a colored man, of the name of Johns, had been associated in trade with the appellee, he transacting the business in Africa, the shipments being to him; that he selected a portion of the goods which made up this cargo, and was frequently attending to the shipment. The appellants then proposed the following question to the witness, which the court refused to allow to be put: — “Whether he heard any conversation, at or about the time of the shipment, between the said Johns and the appellants, or either of them, in relation to the terms on which these goods were to be shipped ?” To the refusal of the court to allow the question to be answered, the appellants objected, and this objection constitutes their first, exception.

We presume this question was asked on the ground of one or the other of two theories; that is to say, that Johns was a partner of the plaintiff in the particular shipment, the subject of investigation in this case, or that he was the authorised agent of the plaintiff in the transaction, and as such, capable of binding him, in and about the business, by his declarations. There is not sufficient evidence of the existence of a partnership in regard to this affreightment, to justify his declarations being given in evidence to defeat the action, because of nonjoinder of the proper parties, nor is there evidence sufficient to show an agency. Until one of these propositions was first settled to the satisfaction of the court, the testimony was inadmissible. This view relieves us from all necessity of inquiring, whether the color of the party, whose declarations were proposed to be given in evidence, could have a legal bearing on the question in any event? The court properly disallowed the question.

On the conclusion of the testimony the appellee asked three, and the appellants two, instructions from the court to the jury. Those asked for by the appellee were granted, and the others refused.

*360We will state the principles which, in our opinion, govern this case, and then apply them to the prayers severally.

There is some difference between the law as laid down by the English, and as recognised by the courts of this country. We adopt the decisions of our own courts, as more conformable to the principles of common law and of justice. In the case of Griggs, at al., vs. Austin, 3 Pickering, Judge Parker, in delivering the opinion of the court, after referring to the.complete review of Chief Justice Kent, in the case of Watson vs. Duykinck, 3 Johns. Rep., 355, proceeds as follows: “It would be but an affectation of learning, to go over

the ground which has been so ably pre-occupied in the opinion given in that case, especially as the same ground has been traversed by Mr. Justice Story, in a note in his edition of Abbott on Merchant Ships, &c., which note was avowedly supplied from the opinion of Chief Justice Kent, above cited. I wish for one, since books are so prodigiously multiplied, to spare the profession and the public the expense of reiterated citations on points indubitably settled, when both text and comment may be found in almost every book in a lawyer’s' library. It is sufficient then to say, that by reference to the above cited opinion and , the note of Mr. Justice Story, it will be found to be the established law of the maritime countries on the continent of Europe, that freight is the compensation for the carriage of goods, and if it be paid in advance, and the goods be not carried by reason of any event not imputable to the shipper, it is to be repaid, unless there be a special agreement to the contrary.”

This, then, being the law applicable to case's of freight, where there has been a failure to earn it, by the delivery of the thing shipped, the question arises in this case, was there a special agreement between the parties, modifying the legal operation of the contract contained in the bill of lading? We are of opinion there was testimony in the cause which, if believed by the jury, was sufficient to justify them in finding such an agreement. We refer to the deduction made in the bill for freight, the conversations which then took place, and that had between one of the appellants, Atwell, and Miller, *361when he applied for a return of the money, he not only not denying it when told the freight was at his own risk, but, admitting that he had insured it. This evidence tended to establish a contract, suppletory to that set out in the bill of lading. If the jury found the existence of such supplemental contract, the appellants Were discharged from the liability sought to be cast upon them in this suit.

That it is competent to the parties to a parol eohtract, to modify if. by adding thereto; is established by the case of Coates & Glenn, vs. Sangston, Garn. of Cunningham, 5 Md. Rep., 131, and the authorities there collected. It is also a well settled principle, that otae who hits no interest in the freight cannot insure it,; he has no insurable interest; Wé did not understand the learned counsel for the appellee, to deny this doctrine; on the contrary, the authorities which he Cited fully sustained it. We understood him to contend, that the appellee had no insurable interest; because, under the bill of lading; the freight was at the risk of the owner of the vessel. If it were at the risk of the owner of the vessel; then lié was clearly right in the view which he urged? but this depends upon a fact, to wit; whether the contract contained in the bill of lading had been modified or not; Whether it was so or hot, was to be determined by the proof in the cause, among which was to be considered the policy of insurance, as giving color to the other evidence; going to shdw that it was agreed and understood between the parties; that the freight Was to be at the risk of the shipper.

The second and third prayers on the part of the appellee are clearly erroneous; the second, because it prohibits the jury from finding from the fact of the insurance of the freight, a special agreement outside of the bill of lading. The fact; standing by itself; possibly might not be conclusive of the matter, but, it is certainly a strong circumstance when coupled with the others testified to; going to show an additional agreement. The prayer, by completely ignoring all the other facts in the case, to say the least of it, was well calculated to mislead the jury. It is equivalent to saying, that the insurance *362by the appellee was no evidence whatever. In this view we do not concur.

. From what we have said it will appear, that we are of opinion the instructions asked by the appellants should have been granted, and that the first prayer of the appellee should have been refused. It is defective in this: it denies the right of the parties to make another agreement after the making of the bill of lading. ■ We know of no principle of law which warrants such a conclusion.

Judgw.ent reversed, and procedendo awarded.