7 F.2d 793 | 2d Cir. | 1925
(after stating the facts as above). Whether a given tri
When a question of jurisdiction in the larger sense is suggested, the first thing for investigation is the pleading — to see how the matter arises. The libel as filed herein suggests no possible question of jurisdiction; it alleges a claim for conventional demur-rage, and says that respondent has paid only a part thereof; for the rest suit is brought. The amendment (which was totally unnecessary) only attempted to explain why all the demurrage had not been paid, viz. that the parties had been under a mutual mistake of fact as to how much was due and that respondent had furnished to libelant the “misinformation” out of which the mistake of fact arose.
How a mistake could be mutual, which rested on “misinformation” furnished to one party by the other, is not easy to see, but the point here is that the amended libel did not vary in legal effect from the original. The matter introduced by amendment gave a hint of a defense, but was immaterial; the prayer was never changed. The answer pleaded payment, or accord and satisfaction; it makes no difference how the effect of that pleading is stated. Such pleadings give a perfect instance of the importance of stating a question. The issue was whether there had been payment and/or an accord and satisfaction, and no one can doubt that this inquiry was wholly within the jurisdiction of admiralty,
The evidence showed that there was not, and never had been, a mistake of fact. There was a marked difference, if not a quarrel, between respondent’s agents and libel-ant’s captain, as to whether there was or was not a genuine strike, that genuinely prevented unloading the steamship, or whether the ■undoubted cessation of labor was anything more than a stoppage of work by a gang working for one railroad, a road that had bought the steamer’s cargo of coal, which stoppage was used by the charterers to evade payment of demurrage as agreed. The discussion or quarrel was transferred to New York, and resulted in an agreement between the parties, reduced to writing in a very formal way, that libelant should take (and it did take accordingly), in full settlement of the demurrage claim here in suit, the amount admitted due by respondents, an amount which necessarily implied that the strike at Bio was a real strike, and within the meaning of the charter party.
On these pleadings, such a finding ends the case. It is ended technically, because an accord and satisfaction having been established, respondent’s defense is established; and nowhere has libelant asked the court to set aside or vacate the accord proven. But if libelant had alleged the accord, and then, prayed that for mutual mistake or fraud it be set aside and relief granted, as if it had never existed, then admiralty would have no jurisdiction, because the first and fundamental exercise of power demanded would be wholly nonmaritime.
To drop all forms or pleadings, and consider only the testimony, libelant’s case is that respondent’s agent falsely and fraudulently pretended that there was a real strike at Bio, respondent in New York adopted and persuaded libelant to accept this falsity, and on that basis the matter was settled; now libelant, having accumulated a lot of evidence in Bio, wants that settlement avoided. If libelant had pleaded its real case, admiralty would have had no jurisdiction; i. e., no power to grant the relief prayed for. It did have jurisdiction to consider the case actually presented on the pleadings, and the court below correctly found that respondent had proved the accord.
That the settlement was a true accord is, we think, clear (vide Corp. Jur. and Bouvier Dict., sub nom. “Accord”), and we may add that there is no evidence whatever of mutual mistake. Whether there was sufficient evidence of fraud we are not called upon to say; no such issue was presented.
Decree below modified, so as to dismiss the libel, without any reference to want of jurisdiction. Costs of appeal to respondent.
