Murrell v. Whiting

| Ala. | Jan 15, 1858

RICE, C. J.

The charter-party bears date December 20th, 1853. It provides, that it shall be binding for two successive voyages, on the terms therein specified; “one voyage to be from Mobile to Toulon, and the other voyage from Mobile to an Atlantie port in France.” It secures to the owners of the ship “the right, after the termination of the first voyage, to send the ship to any other port in Europe, to load for any port of the United States ; proceeding from such port to Mobile, to commence the second voyage.” It also reserves to the ship-owners “ the right to annul the contract for the second voyage, in ease France should engage in war.”

The evidence tends to show, that France did engage in war, about the last of February, 1854, and before the termination of the first voyage, that is, the voyage “ from Mobile to Toulon.” ¥e shall assume such to be the fact, and proceed to lay down what seems to us to bo the law applicable to the case as we understand it to be presented by the record.

As soon as France became engaged in war, it became optional with the owners of the ship “ to annul the contract for the second voyageand the law allowed them areasonable time, after France became engaged in war, for the exercise of that option. If, within such reasonable time, they had determined to annul the contract for the second voyage, and had given' notice thereof to the charterer, the contract as to the second voyage would have been entirely at an end. If, however, within such reasonable time, they did not exercise their option, by putting an end to the contract because France had engaged in, war, and did not give to the charterer any notice of the exercise of their option, then their right to exercise the option was lost. If the option was lost, in this or any other manner, then the contract is to be construed, as if the clause securing it to the owners of the ship had been expunged, or had never been inserted in it. — Abbott on Shipping, 270; 2 Parsons on Contracts, 163, 170, 180, 184; Disborough v. Neilson, 3 Johns. Cases, 81; Rodemer v. Hazlehurst, 9 Gill, 292; Vyse v. Wakefield, 6 Mees. & W. 442; same case, 7 ib. 678; 6 ib. 82; Nesbitt v. Ware & McClana-han, 30 Ala. 68" court="Ala." date_filed="1857-01-15" href="https://app.midpage.ai/document/nesbitt-v-ware-6505937?utm_source=webapp" opinion_id="6505937">30 Ala. Rep. 68; Choice v. Moseley, 1 Bailey’s Rep. 136.

One of the obligations imposed by the contract upon the owners of the ship was, that within a 1’easonable time after the termination of the first voyage, they -would offer to make the second voyage. From that obligation they might have exonerated themselves, by exercising their option to annul the contract as to the second voyage, and giving notice of such exercise, within a reasonable, time after France engaged in war. But, as they did not exonerate themselves in that way, and as there is no evidence tending to show that they were discharged or excused by the charterer from making that offer, that obligation was broken by them, if, within a reasonable time after the termination of the first voyage, they did not offer to make the second voyage. If they were thus guilty of a breach of the contract, their breach authorized the charterer to abandon the contract as to the second voyage, and, upon such abandonment, to defeat a recovery by them under such a complaint as they have filed in this case. The stipulations as to the first voyage are distinct from the stipulations, as to the second voyage; admit of being separately executed and closed, and, after having been executed and closed, must be taken distributively, and considered as if they formed the matter of a separate agreement. The stipulations which form the contract as to the second voyage are entirely executory ; and a party cannot maintain an action on the executory contract, which was first violated by him, and which was thereupon abandoned by the other party. — Cutter v. Powell, and the notes thereto, as reported in 2 Smith’s Leading Cases, 1-53, and in the 44th volume of the Law Library, 25, and cases cited in note 5.

[2.] Ixr Abbott on Shipping, (6th American edition,) 249, it is laid down, that “in all maritime transactions, expedition is of the utmost importance; for, even by a short delay, the season, or object of a voyage, may be lost.” That position has a strong bearing on the present case, in determining whether the offer to make the second voyage was made within a reasonable time after the termination of tlie first. But there are so many other matters, besides that, to be considered in determining that question, that we caunot hesitate to declare, that the question must be left to the jury. No court can judicially know what delay at Toulon, the place named as the termination of the first voyage, would have amounted to unwarrantable delay; nor what delay in going to the other port in Europe, to which the ship had a right to go from Toulon for a cargo, would have amounted to unreasonable delay; nor what delay at that other European port would have amounted to unreasonable delay; nor what delay in returning from that port to New Orleans would have amounted to unreasonable delay. The mere dates of the arrival of the ship at these respective places, as stated in the evidence, cannot authorize the court to say that there was no unreasonable delay, nor that the offer to make the second voyage was made within a reasonable time after the termination of the first voyage. The nature of the contract, and of the cargo, the object of the second voyage, and all the circumstances attending the delays of the ship, and her movements from place to place, together with the dates of her arrival at the several ports, must be taken into consideration; and, in view of all the evidence (including the correspondence between the parties) bearing on the point, the jury must determine whether the offer by the owners of the ship to make the second voyage was made within a reasonable time after the termination of the first voyage. Although what is reasonable time is often a question for the court, it is not always so. It is not so in the present case.- — 3 Starkie on Ev. (edition of 1826, by Metcalf,) 1407; 2 Parsons on Contracts, 173, 174, note (g ;) Ellis v. Thompson, 3 Mees. & W. 445; Cocker v. Franklin Manufacturing Co., 3 Sumner’s Rep. 530; Howe v. Huntington, 15 Maine Rep. 320, and authorities there cited.

[3.] If, however, the jury should find for the owners of the ship, then tlie question comes up, what is the measure of damages. And here it is very important to bear in mind the distietion between the right to recover and the measure of the recovery. The question, whether the plaintiffs are entitled to recover, is very different from the question, how much shall they be permitted to recover.

In George v. Cahaba & Marion R. R. Co., 8 Ala. 234" court="Ala." date_filed="1845-06-15" href="https://app.midpage.ai/document/george-v-cahawba--marion-rail-road-6502589?utm_source=webapp" opinion_id="6502589">8 Ala. Rep. 234, our own court very justly say, “It is perhaps impossible to ascertain any one rule, which will cover all classes of contracts, in regard to the damages which may he awarded to the injured 'party.” In that case, Shannon v. Comstock, 21 Wend. 457" court="N.Y. Sup. Ct." date_filed="1839-07-15" href="https://app.midpage.ai/document/shannon-v-comstock-5515345?utm_source=webapp" opinion_id="5515345">21 Wend. 457, is cited with approval; and there isa strong, and, we think, correct intimation, that in cases like the present, “ the general measure by which to ascertain the damages,” is the profits of which the plaintiffs have been deprived “by the defendant’s breach of contract." “The damage to be recovered must always be the natural and proximate consequence of the act^complained of.” — 2 Greenl. on Ev. § 256; Walker v. Walker, 26 Ala. 262" court="Ala." date_filed="1855-01-15" href="https://app.midpage.ai/document/walker-v-walkers-distributees-6505479?utm_source=webapp" opinion_id="6505479">26 Ala. Rep. 262, and authorities there cited. The recovery must be confined to such losses and damages as are direct and immediate, and naturally flow from the breach of contract alleged and proved; in other words, the breach of the contract must be the cause, and not merely the occasion, of the losses or damages, to entitle the plaintiffs to recover them. — Moore v. Appleton, 26 Ala. R. 633, and authorities there cited. Full indemnity to the plaintiffs for such losses or damages is all that they are legally entitled to recover. “ If the party entitled to the benefit of the contract can protect himself from the loss arising from a breach, at a reasonable expense, or with reasonable exertions, he fails in his social duty if he omit to do so, regardless of the increased amount of damages for which he may intend to hold the other contracting party liable.” “It is his duty to seek other employment. Idleness is, in itself, a breach of moral obligation. But, if he continue idle for the purpose of charging another, he superadds a fraud, which the law had rather punish than countenance.” In the absence of special circumstances to the contrary, the law makes it the duty of the master of such a ship as that of the plaintiffs, in case of the failure or refusal of the charterer to furnish the cargo as agreed on, to avail himself of the ordinary means and of all proper opportunities to obtain another cargo. If be fail to perform that duty, and thereby the damages are enhanced, the owners of the ship cannot recover the increase of damages resulting from the voluntary neglect of duty on the part of the master. If by performing that duty the loss from the defendant’s breach of contract would have been mitigated, the failure to perform it deprives the plaintiffs of the right to recover any damages or loss which would have been avoided by its performance. — Shannon v. Comstock, supra; Heckscher v. McCrea, 24 Wend. 304; Bailey v. Damon, 3 Gray’s R. 92 ; Addison on Contracts, (edition of 1857,) 1152.

[4.] If the evidence for the plaintiffs simply shows that, within a reasonable time after making the first voyage, under the contract, they offered to'make the second voyage, and that the charterer failed or refu'sed to furnish the cargo as agreed on, then the law casts upon him the burthen of proving that, by the use of the ordinary means and of all proper opportunities on the part of the master or owners of the ship, another cargo could have been obtained, and the loss from the charterer’s breach of contract thereby mitigated.

The views above expressed, and the authorities above cited, are deemed sufficient to guide the future progress of this case. We will not extend this opinion by making any special application of them to the rulings of the court below, as it is manifest from them that the court below erred in several respects.

For these errors the judgment is reversed, and the cause remanded.