Higginson v. Weld

80 Mass. 165 | Mass. | 1859

Hoar, J.

The principal question to be determined in this ease is the construction of the contract of the parties. The defendants contend that this contract was conditional, and was only to become obligatory upon them in case the ship Humboldt arrived at Calcutta, and there loaded for Boston. But we cannot conceive that such was its true intent and meaning. The agreement seems to us to have been an absolute one; that the defendants would receive at Calcutta the cargo which the plaintiffs on their part undertook to furnish for the return voyage, and that the only exception was of “ the dangers of the seas and fire.”

There seems to be nothing in the terms of the contract, in its obvious purpose and object, or in the relations of the parties, which should lead to the restricted interpretation for which the defendants argue. “ It is understood,” in the ordinary use of that phrase, when it is adopted in a written contract, has the same force with “ it is agreed.” The obligation of the plaintiffs was absolute. It imposed upon them the duty and risk of transmitting and investing the necessary funds to provide the cargo for which they had stipulated, to take care that it was ready upon the arrival of the vessel, and to make good all damages which might arise from any failure on their part to do what they had agreed. They could have no inducement, it would seem, to bind themselves to furnish the freight, without any corresponding obligation to provide a vessel to receive and transport it. There would be no mutuality in such an agreement. If the defendants intended to make their contract conditional upon the arrival of the vessel at Calcutta, it would have been easy to say so in express terms. In the absence of such a statement, the court cannot add it by construction. It would have been just as reasonable to hold that the plaintiffs’ obligation to provide the cargo was dependent upon their having goods at Calcutta which could profitably be shipped at the time the Humboldt arrived. The second clause of the stipulation of the defendants is very explicit and free from ambiguity. “ Said Wm. F. Weld & Co. agree ” “ that they will receive said freight on the terms named, the dangers of the seas and fire excepted.” The exception directly follows the agreement to receive, and marks the only limitation of that undertaking.

But there are other considerations which lead to the same conclusion. A penalty of $2200 is fixed for the nonperformance of the agreement by either party. There is no agreement on the part of the defendants, to which such a penalty would be applicable, except the agreement to have the ship at Calcutta to receive the freight. It cannot be supposed that the parties meant to limit to this sum the liability of the defendants to carry the.cargo safely to Boston, because the goods might be, and were probably expected to be, of much greater value.

The conduct of the defendants, when they first learned that the contract had been broken, shows that they put the same construction upon it. They immediately notified the plaintiffs’ assignee not to make any purchases of goods for the tonnage of the Humboldt, and added “that they would see him as fo any forfeit for nonperformance.” Ten days afterwards, they offered to provide the same amount of tonnage by other vessels. There was no suggestion, and apparently no idea, that the contract was conditional.

The defendants further contend that the insanity of the master was a sufficient excuse for their failure to furnish the vessel according to the contract. But this does not come within the exception which they were satisfied to make the only one to the absolute fulfilment of their engagement. Expressio unius est exclusio alterius, is a maxim which applies as forcibly to the exceptions to an obligation as to the enumeration of the objects to which the contract applies. The disease of the master was a misfortune, but the plaintiffs did not assume the risk of it.

Nor can we see any just grounds to hold that the offer in Boston, on the 23d of June, to furnish another vessel, was a substituted performance which the plaintiffs were bound to accept. If the Humboldt had gone to Calcutta she would have arrived there, according to the usual rate of passage, on or about the 4th of July. It was about that time that the plaintiffs had a right to expect her, and to make their calculations and arrangements for the purchase and shipment of their goods. It would take seven weeks to send information of the new arrangement to Calcutta, and defer the time of shipment to the last of August, which might make a material change in those arrangements. But, in addition, the plaintiffs had been expressly notified, ten days before, to countermand their orders for the purchase of goods, and had transmitted this notice to their agents at Calcutta. It was not to be presumed that they had retained the funds which they had provided to make their shipment by the Humboldt, without some other disposition of them.

We therefore think there was clearly a violation of the written contract by the defendants; and the only remaining questions are those which relate to the amount of damages.

The plaintiffs claim the sum of $2200, as liquidated damages, which have been agreed on by the parties. But there are two decisive objections to the claim. In the first place, in the language of Chief Justice Marshall, in Tayloe v. Sandiford, 7 Wheat. 17: “ The parties themselves denominate it a penalty ; and it would require very strong evidence to authorize the court to say that their own words do not express their own intention.” But further, and applying a rule which is among the most important in determining whether the sum named is to be treated as a penalty, or as liquidated damages, it appears very clearly by the contract that the penalty named would be alike incurred by the nonperformance by either party of any of its numerous stipulations ; and that the actual damage caused by a failure to perform some of them might be very trifling in amount, and capable of very exact pecuniary estimation. If, for example, the plaintiffs had failed to furnish five or ten tons of the stipulated cargo, or if the defendants had failed in some trifling particular to keep the ship in proper order for the voyage, so that one or two packages of goods had been injured, can it be supposed that it was in the contemplation of either that so serious a consequence should follow ? The penalty would be the whole sum to be paid for a breach of the whole contract; and it would be unjust and oppressive to require either party to pay it, for violating any one of the least important items.

We are then brought to the consideration of the actual amount of damages which the plaintiffs have sustained. The defendants should pay such a sum as would place the other party in as good a pecuniary condition, at the time the contract was broken, as if it had been performed; and this is capable of being easily and satisfactorily ascertained, from the facts agreed. The rate of tonnage at Calcutta, at the time when the Humboldt should have arrived, was four dollars a ton higher than the price which the plaintiffs were required by the contract to pay. The right to tonnage was at that port, by commercial usage, a merchantable right, bought and sold in the market, and quoted in the price current. The plaintiffs would have been obliged to pay four dollars a ton more to any other owner of a vessel in that port, at that time, than they had agreed to pay to the defendants ; and might have sold the right secured to them by the contract at the same advance. The difference between the contract price and the market price, with interest from the time when the freight would become payable, that is, from the time when the Humboldt ought, under ordinary circumstances, to have arrived in Boston, seems to us the reasonable and proper amount of damages which the plaintiffs are entitled to recover.

Making proper allowance for the time for loading at Calcutta, and for ordinary delays on such a voyage, we fix the time from which interest should be computed at the 1st of January 1855.

Judgment for the plaintiffs for $600, and interest from January 1st, 1855.