86 Ga. 408 | Ga. | 1890
Strachan & Co. sued James Horan, the owner of the British steamship “ Resolute,” on an account, upon a hill of particulars attached to the declaration, the said account being made up of the charge of 2| per cent, commission commonly known as “custody commission,” upon the value of the cargo discharged, covering services rendered and work and labor done in and about the steamship “Resolute” in the port of Savannah, and also an attendance fee of $500, and also a commission on disbursements of the ship of 2J per cent, thereon, the whole amounting to $4,975. There were other counts in the declaration for work and labor done, and also a quantum meruit. The defendant appeared and pleaded the general issue. It appears from the record in this case that about 5 o’clock in the morning, October 1st, 1887, the steamship “Resolute,” then loaded with 5,003 bales of cotton, had cleared for sea; and while she was taking on coal preparatory for leaving
The main and controlling questions argued before us were, (1) did the captain of the vessel, under the instructions from Chubb the underwriter, approved by Horan the owner, have a legal right to discharge Strachan & Co. from his employment without sufficient cause; and (2) was Horan, the owner, bound by the custom of the port of Savannah in regard to custody commission, attendance fee and commission on disbursements ?
As to the custody commission and attendance fee, and the knowledge of the captain in regard thereto, the evidence clearly shows that there was such a custom in Savannah, and that the captain knew it and contracted with reference to it. It will be remembered, from the recital of facts above giveu, that when Strachan had been in charge of the vessel about two hours, he went down to the cabin to breakfast with the captain, and then informed him that “by appointing him (Strachan) agent, there were certain customary charges, such as custody commissions of 2-J per cent., and attendance fee for managing this business, to accrue”; and the captain said, “ Yery well, if it was the custom of the port he could not help it ”; and that as Strachan had been agent of the ship before, it would be better for him to attend to the business than any one else. The captain does not deny this statement of Strachan, but what
It was argued, however, by counsel for the plaintiff in error, as to the attendance fee, that it was unreasonable because the custom did not fix it in every case. There was no custom as to any certain amount, but it was left to the discretion of the person employed, and counsel claims that according to this custom, when the person employed fixes the amount, it is final. We think the evidence shows that although the custom did not fix the fee, it must be a reasonable fee. In our opinion, a custom is not invalid because it does not fix the amount of the fee for every case. If the custom is certain that it must be a reasonable attendance fee, that is sufficient. If custom had undertaken to fix the same fee for every case, it would not have been a good custom. The jury found $800 to be a reasonable attendance fee upon the steamship “ Resolute,” loaded with 5,003 bales of cotton. That would have been an unreasonable fee in the ease of a small schooner loaded
Moreover, this, part of the custom was not as well proved as was the custom in regard to the other items. None of the witnesses cite any instance where commissions on disbursements were charged and allowed to one who did not furnish the money. It is true that most of the witnesses gave it as their opinion that the person in charge of the ship would be entitled to the
Besides, we think if the custom had been proved, it would not have been a good custom and could not have been enforced by law, unless the plaintiff’ went further and proved that he had the money and kept it for that particular purpose, or had made arrangements to procure the money for that purpose, and thereby incurred expense. It seems to us it would be absurd to hold that a person is entitled to two and a half per cent, commission on disbursements which he never made and did not have the money to make and had made no arrangements to procure the money to make, and which disbursements were made by the owner of the vessel or some one else for him. We think, therefore, that the court erred in giving the charge above set forth, as to this particular item, and that the jury found contrary to law and the evidence in finding a verdict for this commission on money which the plaintiffs had not disbursed and which they had made no arrangements to .disburse.
The court having erred in its charge as to the commission. on disbursements, and the jury having found $687.50 as commission on disbursements of $27,500.00 at 2|- per cent., we reverse the judgment of the court below in refusing a new trial upon this ground ; hut if the defendants in error will, within thirty days after this judgment is made the judgment of the court below, write off said sum of $687.50, then the judgment will' stand affirmed. Judgment reversed, with direction.