11 Haw. 357 | Haw. | 1898
OPINION OF THE COURT BY
The libellant let the schooner “Mahimahi” to one Ho Pai Yet for the term of six months from June 15, 1894, for the sum of $125 per month, the charterer to bear the expenses of manning, repairing and furnishing the vessel (with certain exceptions) and at the expiration of the term to “surrender and yield up the said schooner to the said party of the first part (libellant) in as good condition as she now is, ordinary use and wear excepted.” The libellee, Ahlo, joined in the charter-party guaranteeing the payment of the $125 per month and the faithful performance by the charterer of all his agreements and covenants.
During the term of the charter, on November 14, 1894, the
This libel is for $2500 damages for the failure of the charterer to “surrender and yield up” the schooner to the owner at the expiration of the term as agreed.
The Circuit Judge dismissed the libel upon the grounds that the loss occurred through the “Act of God” and not through any fault of the master or charterer; and that the covenant to surrender the vessel at the expiration of the term was only an expression of what the law would imply in the absence of an express agreement and left the parties subject to the common law rule that a bailee is obliged only to exercise due care and is not liable for losses occurring through no fault of his.
On the evidence the finding of the Circuit Judge that the loss occurred through no fault or negligence of the master or charterer must be sustained. The main question is whether the charterer • was obliged to return the schooner at all hazards or only in case he was not prevented from doing so through no fault of his own. It will be unnecessary to review each of the numerous cases cited by counsel on both sides. They relate in general to a class of what are called “impossible agreements.” There are several classes of such agreements, — those the performance of which is impossible in themselves 'or is or after-wards becomes impossible by law, those the performance of which becomes impossible by default of one of the parties, and those the performance of which is impossible in fact or becomes impossible without the default of either party. Pollock, Contr., 318 et seq. The agreement in question belongs to the last mentioned class. The rule in regard to this class is that the agreement is or becomes void or not according as the intention of the parties was or was not that the agreement shordd be conditional upon its performance being or continuing possible in fact. In other words the question is one of construction. If it was intended that the charterer should return the vessel to the owner in any event or be hable in damages for not doing so, that is,
The cases in which exceptions are presumed to have been intended are those in which the parties have expressly agreed to do merely what the law would imply and in which the law would imply the exceptions as well as the rule, for in such cases the parties by expressing the usual rule would presumably intend that it should carry with it the usual exceptions; and those cases in which the performance of the contract depends on the existence of a certain thing or condition or set of circumstances, that is, cases in which the parties apparently have taken something for granted and have contracted on that basis and would presumably have contracted differently had they contemplated different circumstances. To illustrate, an apparently absolute contract to marry or to perform personal services is subject to the implied condition that the person shall continue to live. So, an obligation to deliver at a future time a particular horse, whether sold or hired, is at an end if the horse die meanwhile.
“The contract in this case comes as it seems to us under another class which relates to the hiring for use of the thing hired and where an express contract is made to re-deliver the article hired upon the determination of the term of hiring. Even in such cases of express contract, there is implied a condition of the continued existence of the thing which is the subject of the contract, and if it perish without any fault of the hirer, so that re-delivery becomes impossible^ the hirer is excused.” * * *
“When language like that found in this agreement is used, the condition of continued existence is implied, and as thus interpreted it creates nothing more of an obligation than that which the law raises without any such promise. When language is used which does no more than express in terms the same obligation which the law raises from the facts of the transaction itself, the party using the language is no further bound than he would have been without it.”
The court also quoted from Leake on Contracts as follows:
“The authorities establish the principle that where from the nature of the contract it appears that the parties must from the beginning have known that it could not be fulfilled, unless when the time for the fulfillment of the contract arrived, some particular specified thing continued to exist, so that when entering into the contract they must have contemplated such continued existence as the foundation of what was to he done, then*362 in the absence of any express or implied warranty that the thing shall exist, the contract is not to be construed as a positive contract, but as subject to an implied condition that the parties shall be excused in case before breach the contract becomes impossible from the perishing of the thing without the default of the contractor.”
See also Ames v. Belden, 17 Barb. 513; McEvers v. Steamboat Sangamon, 22 Mo. 189: Hyland v. Paul, 33 Barb. 241; Stewart v. Stone, 127 N. Y. 500; Sturn v. Boker, 150 U. S. 312.
In Steele v. Buck, 61 Ill. 343, cited by the libellant, it is true, the court came to a different conclusion, but that suit was brought, not upon the charter-party, but upon a separate bond given to secure the performance of the covenants in the charter-party. The court based its decision on this distinction. It said that if the charter-party were “all the contract between the parties, there might be some reason for insisting that it creates no higher obligation than the law imposes,” and distinguished Ames v. Belden, supra, on the ground that the action in that case was upon the charter-party itself. Whether this distinction was well-founded in principle, we need not venture to say, but the distinction was taken and the court did not dispute the correctness of decisions of the class to which Ames v. Belden belongs. In Young v. Leary, supra, the suit was, as in the present case, against the surety and not against the charterer.
The presumption that in cases of this kind the parties contemplate that there should be a continuing obligation only in case of the continued existence of the thing whose existence is necessary to make performance possible may, of course, be rebutted by other appropriate words in the contract. • In the present case the other language of the charter-party does not tend in the least to overcome the presumption. If anything, it rather strengthens it.
The decree appealed from is affirmed with costs.