72 So. 83 | Ala. | 1916
Lead Opinion
It is clear that defendants could, by the express terms of their charter party, declare a forfeiture of the contract and withdraw their ship from the lessee’s service for any failure by it to pay an installment of charter money on the first day of each semimonthly period, unless punctual payment were waived by particular agreement, by implication from a general course of dealing, or by recognizing the contract as continuing after the default occurred (Andrews v. Tucker, 127 Ala. 612, 29 South. 34; Elliott v. Howison, 146 Ala. 568, 40 South. 1018), or, to state the last alternative somewhat differently, by failing to exercise the right of rescission promptly and within a reasonable time (Elliott v. Howison, supra; Re Tyrer, 9 Aspin. 186, 84 L. T. Rep. N. S. 653.)
“The general rule is that, when a party indebted to the same person on more than one account makes a partial payment, he has the unqualified right to direct its application to one debt in preference to the other. The payment is voluntary, and the debtor may declare the terms upon which it is made, and the creditor must accept them, or reject the payment. If he accepts the payment, he takes it cum onere; therefore it is that, if the debtor pay with one intent which is known or communicated to the creditor, and the creditor receives with another intent, the payor must prevail.”—Pearce v. Walker, 103 Ala. 250, 252, 15 South. 568.
The same result would also follow from the application of a familiar principle of the law of agency that “the principal must ratify the whole of the agent’s unauthorized act or not at all, and cannot accept its beneficial results and at the same time avoid its burdens. It follows that, as a general rule, if a principal, with full knowledge of all material facts, takes and retains the benefits of the unauthorized act of an agent, he thereby ratifies such act, and with the benefits accepts the burdens resulting therefrom.”—31 Cyc. 1267, 1268, and cases cited; Crawford v. Barkley, 18 Ala. 270, 273. Specifically:
“If an agent obtains possession of the property of another, by making a stipulation or condition which he was not authorized to make, the principal must either return the property, or, if he receives it, it must be subject to the condition upon which it was parted with by the former owner. This proposition is founded upon a principle which pervades the law in all its branches, ‘Qui sentit commodum sentiré debet et onus.’ ”—Wheeler, etc., Co. v. Aughey, 144 Pa. 398, 22 Atl. 667, 27 Am. St. Rep. 638; Hitchcock v. Griffin, 99 Mich. 447, 58 N. W. 373, 41 Am. St. Rep. 624.
It is to be conceded, of course, that the incidents accompanying the service of a ship under a charter party like this may modify some of the principles of law which ordinarily govern the conduct of the parties. Making distant and protracted voyages which cannot be interrupted, and which do not coincide with the periods for which the hire must be paid and accepted, it is conceivable that the lessors may, even after a default, accept and retain the hire for some future period necessarily to elapse before the return of the ship, and before it could be withdrawn from
The payment and acceptance of the installment on December 4th for the period ending December 19th had no relation to the question of a delayed return.
It results that the award of the arbitrators was erroneous as a matter of law, and the judgment will be reversed, the award will be set aside and vacated, and the cause will be remanded for further-proceedings in accordance with this opinion.
Reversed and remanded.
Rehearing
ON REHEARING.
The gist of the complaint is that defendants, in violation of their contract with plaintiff’s assignor, withdrew their steamship from service “on the 1st day of December, 1914, and refused thereafter to further perform the said contract.”
The arbitration agreement recites tha,t: “A dispute having arisen between the owners and charterers as to the right of the owners to withdraw the steamship St. Ninian from the charter party, * * * and thereupon the said owners having demanded an arbitration of their right to withdraw said steamship from said charter party, '* * * the said owners and charterers and the said R. D. Bell hereby submit to said arbitration the determination of the question whether the said owners had the right to withdraw said steamship from said charter party on December 1, 1914, pursüant to the notice given by them to that end.”
The award made on December 11, 1914, is: “We, * * * having carefully considered all'the evidence submitted to us in
On motion of defendants the trial court entered judgment as follows (after reciting the preliminaries) :
“And, the defendants now moving the court to enter up said award as the judgment of the court in this cause, it is ordered and adjudged that the said award be, and the same is hereby, entered as the judgment of this court in this cause, and that the defendants go hence without day. It is further ordered and adjudged that the defendants do have and recover of the plaintiff the costs of court in this behalf expended, for which let execution issue.”
(1) The complaint includes not only the question of the rightfulness of defendants’ withdrawal from the charter party at the moment of withdrawal, but also their further refusal to perform the contract. “The pleadings and the issues formed thereby may be looked to by way of aid in determining the scope of the submission.” — 5 Corp. Jur. 305. This assumes of course an element of reasonable doubt in that regard.
(2) Defendants’ demand for arbitration was in general terms “of their right to withdraw said steamship from said charter party.”
. (3) A large part of the evidence submitted to the arbitrators related solely to the questions of waiver and estoppel by and against defendants by reason of their acceptance of the install
(4) The arbitrators recite that their award is “in the matter involved in said pending suit,” and the award itself is upon a careful consideration “of all the evidence submitted to us in regard to the dispute as to the rights of the owner to cancel charter of the British Steamship St. .Ninian with Seeberg Steamship Line.”
(5) The finding is, specifically, that “the owners are within their rights in canceling charter of said steamer.”
(6) The judgment of the court, following the generality of the award, includes a summary judgment for defendants upon the cause of action.
(7) The case has been argued in this court by counsel for both parties as if the submission included the entire question of breach by defendants, and their waiver or estoppel by acceptance of charter money. Much of the brief of counsel for appellant was devoted to the questions of waiver and estoppel, and those contentions are discussed by counsel for appellees on their merits, without any suggestion that they were not included in the submission.
Taking the record as a whole, we think it conclusively shows a practical construction of the scope of the submission by parties, by arbitrators, and by trial judge, which is wholly inconsistent with the contention now made. That it was the intention of both parties to determine, not only the rightfulness of defendants’ notice of withdrawal on December 1st, but also the rightfulness of their permanent abandonment of the charter party, and that the proceeding was knowingly conducted to that end by the parties, we cannot serioúsly doubt. In such a case “it should not be allowed to either party to insist in this court for the first time that, in reviewing the rulings of the trial court, this court should do so without regard to that issue.”—Gainer v. Southern Ry. Co., 152 Ala. 186, 189, 44 South. 653, 653; 3 Corp. Jur. § 623; 5 Ency. L. & P. p. .77; § 10. But, if appellees’ contention be conceded, what would be the result?
In view of these considerations, we are constrained to deny the application for rehearing.