37 How. Pr. 458 | NY | 1867
Oliver N. Jenkins, the plaintiff’s intestate, was employed by one Anthony Pelletier to take charge of the bark Peytona, then lying in the port of New York, on her then contemplated voyage to Australia. The title of the bark then stood in the name of the defendant, as owner,
And the defendant covenanted and agreed that he would pay to Jenkius, in consideration of said services, the sum of one hundred and fifty dollars for each and every month of said period during said outward and return voyage.
The bark was owned by said Pelletier, and Overman & Gruner; and they were the persons beneficially interested in said voyage.
The instructions of Pelletier to Jenkins, under date of February 7, 1853, are set out in the case, and show fully that Pelletier assumed the sole control and direction of the voyage. The defendant offered to prove on the trial, that this agreement between himself and Jenkins was signed by him solely for and on behalf of said Pelletier, Overman & Gruner ; that they were the only persons beneficially interested in said bark Peytona; that the defendant had no benificial interest in her or her cargo or voyage; that he was not interested in or connected with any other ships or mercantile business ; and was connected with said bark Peytona only as holding the naked legal title to her, for and on behalf of
To this evidence the plaintiffs’ counsel objected, and upon such objection the same was excluded. In the further consideration of this case, we shall assume that the matter so offered in evidence, and excluded on the plaintiffs’ objection was true, and could have been proven. The bark Peytona sailed on her intended voyage from the port of New York soon after the date of said agreement, and was compelled, in the judgment of the master, to put into the port of Bahia, South America, by reason of shortness of water. After leaving Bahia the vessel put into Cape Town, on the coast of Africa, for water and fresh provisions. After leaving Cape Town, the bark encountered heavy winds and lost her rudder; and the vessel leaked, and the captain then put into Port Louis, on the island of Mauritius, where he arrived on the 16th of August, 1853. On the 8th of September following, the captain abandoned the vessel to the underwriters, and she was advertised for sale ; and the fur- t ther voyage was then abandoned. The judge at the trial instructed the jury that the plaintiffs (in whose name the suit had been revived upon the death of Jenkins) was entitled to recover of the defendant $150 a month, from February 8, 1853, to November 25, 1853, and for such further period of time as would.be reasonably required for captain Jenkins to return to New York from Mauritius, by the first usual mode of conveyance that presented itself after November 25, 1853, with interest on the aggregate amount from February 14, 1855, unless the voyage was broken up through the unskilfulness, negligence, fault or fraud of captain Jenkins, in which event the defendant was entitled to
The defendant claimed that the voyage was broken up by reason of the negligence, unskilfulness, neglect, fraud, and fault of the captain in this:
First. That the vessel could have been repaired and proceeded on her voyage, and therefore the captain was not justified in abandoning her, and causing her to be advertised for sale.
Second. That the captain, without good cause, deviated twice from the course of the voyage, and put into Bahia and Cape Town, and remained there longer than was necessary, and thereby caused the vessel to encounter the storm which was the immediate cause of the necessity of putting into Mauritius.
The judge charged, that if the jury should find both that the captain could have procured sufficient means to repair the vessel, and that under all the circumstances it was best for the interests of the owners that she should be repaired at Mauritius, then their verdict was to be for the defendant. If, however, they should find either that the captain could not procure sufficient means to repair the vessel, or if he could, that it was not for the best interests of the owners to have the repairs made at Mauritius, then the captain was justified in abandoning the vessel and advertising her for sale; and the judge further charged, that if after taking all-the matters referred to into consideration, with the other facts proved in the case, the jury should come to the conclusion that means could have been raised for making these repairs, and that it was for the best interests of the owners that the repairs should have been made at the port of Mauritius, then that dispossd of the case in favor of the defendant, and there was no necessity for considering the other matters set up in his defense.
The defendant excepted to the charge, as to the time for which wages were recoverable, on the ground, that if recoverable at all, that they could not be recovered for a longer period than from the inception of the contract sued on to the breaking up of the voyage.
The defendant also excepted to that portion of the charge which stated that the plaintiff was entitled to recover unless the voyage was broken up through the unskilfulness, negligence, fault or fraud of captain Jenkins. Also, to that portion of the charge in reference to the first and second claims set up by the defendant; and also as to what the judge charged the jury, m reference to the damage sustained by the owners, arising from the negligence or unskilfulness of the captain, or from the unjustifiable deviations (if the
Judgment was entered at the special term of the New York supreme court, in accordance with the verdict, for the plaintiffs, and on appeal to the general term of that court, the judgment, by consent of the plaintiffs, was modified by deducting therefrom the amount allowed the plaintiffs for the wages of the intestate from May 27, 1854, toOctober 11, 1854, amounting to $675, with interest from February 14, 1855, amounting, in all, to the sum of $1,195.53 ; and the general term affirmed the judgment with such deductions.
The verdict of the jury must be taken and assumed to have established the following facts in this action :
1. That the voyage in question was not broken up through the unskilfulness, negligence, fault or fraud of captain Jenkins.
2. That the vessel could not have been repaired at Mauritius, and have proceeded from theuce on her contemplated voyage to Australia; and that the captain was justified in abandoning the vessel, and such voyage, at Mauritius, and causing the vessel to be there advertised for sale.
3. That the captain did not deviate twice from the course of his voyage, by putting into Bahia and Cape Town,without good cause; and that he did not remain in those places longer than-was necessary, and that such deviations and delays were without fault on his-part.
4. That the owners of said bark did not sustain any damage by reason of the fault, negligence, or unskilfulness of the captain in the line of his duty.
We are to bear in mind, however, in looking into the rights of the captain, that they arise and grow out of the contract made with the defendant, so far as any liability on his part- exists.
The law of England, and that of this country, holds that the master has no lien on the ship for his wages, and it is now definitely and clearly settled in England, that the master contracts upon the credit of the owner, and not of the ship, and that he has no lien on the ship, freight or cargo, for any debt of his own, as for wages, or stores purchased, or repairs done at his expense, either at home or on the voyage. The reason for this laid down in the books of the common law is, that although mariners are supposed to contract on the credit of their ships, the master’s contiact is altogether of a personal nature, on the credit of the owner (12 Mod. R., 405 ; Read agt. Chapman, 2 Strange, 937 ; Ragg agt. King, id., 858; Clay agt. Sudgrave, 1 Salk., 33 ; S. C., 1 Ld. Ray., 576; and Carth., 518; Curtis' Rights, &c., p. 252 ; 3 Kent's Com., p. 166).
Chancellor Kent, thought this doctrine in the English law remained yet to be definitely settled and declared in this country, and refers to various cases in which the English authorities have either been overruled, questioned, or qualified by the judges in the United States. But he says, that by the case of Van Bokkelin agt. Ingersoll, (5 Wend., 315), as settled by the court of errors in New York, the English law was recognized, -that the master had no lien on the freight, nor on the vessel, for his wages.- If it were necessary to the decision of this case, we should feel bound to adhere to the doctrine thus promulgated by the highest court of this state as the law of this state, and which has
The master’s contract is therefore to be governed by and construed by the sanie rules of law-as are applicable to other contracts.
The doctrine in relation to mariner’s contracts, and to those of seaman for wages, and the maxim that “ freight is the mother of wages,” have no relevancy or application whatever to the contract of a master for his compensation as such. That contract is to be governed by its terms, and by the same rules which are applied to the construction of all other contracts.
By the terms of captain Jenkin’s contract with the defendant, he agreed to take'charge oí the vessel, and be governed in the discharge of his duties, as master thereof, according to the instructions given to him byPel!etie.r,and to use his best efforts for the interest of the said bark and owners. A faithful compliance with these terms was a condition precedent to his right to demand and receive the stipulated wages. The case of Van Bokkelin agt. Ingersoll,(supra), held that the captain, to entitle himself to his wages, must show that his conduct was that of a prudent, judicious, and careful master. The pidge at the trial therefore, properly told the jury that the plaintiffs could not recover, if the voyage was broken up through the unskilfulness, negligence, fault or fraud of captain Jenkins. In Macy agt. Wheeler, (30 N.Y., 231), which.was an action for supplies furnished this same vessel, where the same facts appeared as to the ownership of this vessel as were given in evidence or offered in evidence upon the trial of this action, this court held, that it was indubitably established that Pelletier was the real owner of the vessel, both before and after the transfer to the defendant ; that the defendant had no interest in her or her earnings, and that they belonged to Pelletier, or those to whom he transferred them. That under these circumstances the defendant was not liable for supplies, unless purchased by him, or by some person authorized by him.
It is needless to go outside ot the discussion had upon this question in this state. The case of McMillan agt. Vanderlip, (12 John., 165), contains an elaborate review of the English cases, and enunciates the settled rule of law with precision and entire accuracy. In that case the agreement was, that the defendants were to pay Vanderlip 3 cents per run for spinning, and that he was to work for them 104 months, and the plaintiff claimed for spinning 845 runs at 3 cents per run. The question was, whether the contract was an entire contract, performed on the part of the plaintiff", operating as a condition precedent, or whether the agreement to pay 3 cents a run on one side, and the promise to work for 104 months on the other, were independent and unconnected with the rate at which the defendant was to spin. Judge Spencer said: “ It is evident to my mind, that the parties before us intended that Vanderlip should serve the McMillan’s for 104 months, and that he should be paid 3 cents for each run of yarn spun by him, and that they intended this as one entire contract. # * * If the contract was entire, and looked as well to the price per run as to the time of service, it necessarily formed a condition precedent; and then Vanderlip could not sue until he had performed his contract of service, or until the period within which it was. to be performed had elapsed.” In view of this authority, we must regard the contract in the present case as one entire contract, and that the rate per month stipulated therein was to be paid on full performance of the condition precedent on the part of Jenkins, namely: the services as master of the vessel for the whole period of the round voyage. In Reab agt. Moor, (19 John., 337), affirmed
It was also held, that the written contract between the parties was an entire contract of hiring for eight months, at a stipulated price. That M. was to work eight months for E, for which E. was to pay him 104 dollars, or 13 dollars a month—not 13 dollars at the end of every month, but the entire sum of 104 dollars to be paid was to be equal to that rate of compensation. So in the case at bar, it is clear that the monthly rate fixed was not to be paid at the expiration of every month; but when the round voyage was completed, Jenkins was to be paid at that rate for the time necessarily consumed in making it. (See also Webb agt. Duckingfield, 13 John., 390; Burril agt. Cleeman, 17 John., 72).
In the latter case, the action was brought upon a covenant to a charter party. The defendant agreed for the charter and hire of the vessel from New York to Pernambuco and back for the sum of $1,400, on delivery of the return cargo, on' arrival of the vessel at New York. The vessel went to Pernambuco, but in consequence of the port being blockaded, could not land the outward cargo, or take in a return cargo, but returned to New York with the cargo as originally laden on the vessel.
In the opinion of the court, said: “The freight stipulated to be paid by the charter party depended upon the performance of the voyage, and was a condition precedent to the freight being payable; and this condition not having been performed, the freight cannot be recovered.” To the same effect' are the following cases: Lantry agt. Parks, (8 Cowen, 63); Monell agt. Burns, (4 Denio, 121). It will now be convenient to examine ihe doctrine settled by this court upon this question. This subject received a
The same doctrine was reiterated in Cunningham agt. Jones, (20 N. Y., 486). In that case it was held that the contract (an agreement to erect a brewery upon the defendant’s land, without any stipulation or agreement as to the time and manner of payment, except that the labor was to be performed by day’s work) was an entire one, and indivisible, and that the contractor was not entitled to recover without a full performance on his part. It matters not that no price was fixed upon as a compensation. The defendant had a right to insist, before he was called upon to pay, that the contract should be first performed. The same doctrine was re-affirmed in Baker agt. Higgins, (21 N. Y., 397). It is deemed clear, that by the terms of this contract, the defendant agreed to compensate the plaintiff’s intestate for the round voyage, at a certain rate of compensation per month, for the time thus employed in fulfilling the contract, and that such compensation was not due and payable until the performance on the part of Jenkins of the conditions precedent to such payment.
In Oakley agt. Morton, (11 N. Y. R., 25), this court decided that a condition precedent must be strictly performed to entitle a party to.recover.
Judge Allen, in his opinion, said : “Whenever a party by his own contract creates a duty or charge upon himself, he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract ” (citing numerous au
The voyage which plaintiffs’ intestate agreed to perform, was not made. It is clear upon all the authorities, that they cannot recover, unless some valid and legal excuse is shown for the nonperformance by him. The plaintiffs claim that the interruption of the voyage, and the sale of the vessel at Mauritius, furnish such an excuse. To this the defendant is at liberty to say, “ Non in hcec foedere veni.” Inevitable accident on the part of a third party is not an adequate excuse. The fault of the defendant alone is available for such a purpose. As was correctly observed in the case last cited, such “ accident by inevitable necessity is not available, because he might have provided against it by his contract.”
This court decided, in Harmony agt. Bingham, (12 N.Y., 99), that when a party unconditionally, by express contract, agrees to do an act, performance is not excused by inevitable accident or other unforeseen contingency not within his control; and in the opinion of the court, by Judge Edwabds, it is said “ that this rule has been uniformily followed, and that, too, even in cases in which its application has been considered by the court as attended with great hardship. The only exception that has ever been acknowledged, is where a party has contracted to do a thing which the law considers impossible.
Judge Rugglés said; “It is a well settled rule of law, that where a party, by his own contract, absolutely engages to do an act, it is deemed to be his own fault and folly that he did not thereby expressly provide against contingencies, and exempt himself from responsibility in certain events. And in such a case, therefore—that is, in the instance of an absolute and general contract—the performance is not excused by an inevitable accident, or other contingency, although not foreseen by or within the control of the party.” The same doctrine was enunciated by this court in Tomp
“ No rule of law is more firmly established by a long train of decisions than this, that where a party, by his own contract, creates a duty or charge upon himself, he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract.” In reference to the hardship of such a rule,the court very justly says: “No matter how harsh and apparently unjust in its operation the rule may occasion
It logically follows from these authorities, that the contract of the plaintiffs’ intestate with the defendant was for the round voyage and an entirety, and that the compensation therein specified was to be made upon its performance; that such performance was a condition precedent, and no action could be maintained until such performance had taken place, unless the party upon whom such performance rested established a valid and legal excuse for such omission or nonperformance; that none such has been shown in this case, and, asa consequence, neither the plaintiffs’ nor their intestate are entitled to claim such compensation. If these views are concurred in, it follows that the judgment appealed from must be reversed, and a new trial ordered, costs to abide the event.
' The majority of the judges are, however, of the opinion that the points discussed in the preceding opinion were not raised upon the trial of this action, and therefore are not now available to the defendant. But they are of the opinion that the exception to the charge, as to the time for which wrages were recoverable, if recoverable at all, that they could not be recovered for a longer period than the inception of the contract sued on to the breaking up of the voyage, presents the question distinctly for what period of time the plaintiffs are entitled to recover wages of the cap
The judgment appealed from is therefore affirmed, without costs of this appeal, if plaintiffs elect and consent to deduct all allowances for wages after September 8, 1853, and interest thereon included in the judgment. If they do not so elect and consent within twenty days after notice of this judgment, the said judgment is reversed anda new trial ordered, costs to abide the event.
Weight, Porter, Fullerton and Parker, JJ., concur in reversing, unless there is a reduction of damages to compensation while actually navigating vessel.
Affirmed, conditionally.
Hunt, J.. and Grover, J., dissent.