3 Ga. App. 714 | Ga. Ct. App. | 1908
The plaintiffs in error brought a petition in the city court of Brunswick, claiming that the Atlantic Lumber Company is indebted to them, for the breach of a charter-party or contract of shipment, made and entered into between the plaintiffs and the Atlantic Lumber Company, a certain sum stipulated in the charter-party. In the first place, the suit sought to recover the stipulated damages for delay in loading the vessel, whereby the loading was not completed within the time allowed and limited by the charter-party (it being alleged that the delay was due to the fault of the defendant, and that such delay amounted to three and one half days), the indebtedness thereby amounting, at $40 per day (the sum stipulated in the charter-party), to $140. The plaintiffs also claimed that a second item, of $480, was due by the defendant, by reason of a breach of the charter-party, in that, after the loading was completed, the vessel was detained for a period of twelve days (at $40 a day) by the failure of the defendant to clear the vessel. The plaintiffs allege that the first item is due to the failure of the defendant, the Atlantic Lumber Company, to furnish the cargo to the vessel wdthin the time allowed, alongside and within reach of the vessel’s tackle.' The demurrage due under the second item, as contended for by the plaintiffs, wras caused by the refusal of the defendant to allow the master of the vessel to sign bills of lading, with the claim for the
Upon review of the evidence, we are satisfied that the court erred in this ruling. There was evidence in behalf of the plaintiffs which would have authorized a finding in their favor. Neither the fact that there was evidence, coming from a witness introduced by the plaintiffs, which would have authorized a finding for the defendant as to the first item of demurrage, which was the basis of the plaintiffs’ suit, nor the fact that the second item of $480, claimed by the plaintiffs, is not recoverable by law, would authorize a judgment of nonsuit. The plaintiffs had proved their claim as laid, and thereby had escaped liability for nonsuit, even though they might not be entitled to a verdict, under proper instructions by the court, or even if, after the jury should have rendered a verdict in (heir favor, it would be proper for the court to grant a new trial. Where there is sufficient evidence to prove the plaintiff’s case as laid, it is error to grant a nonsuit. Helvingston v. Macon County, 103 Ga. 107 (29 S. E. 596); Kelly v. Strouse, 116 Ga. 898 (43 S. E. 280); S., F. & W. Ry. Co. v. Ladson, 114 Ga. 762 (40 S. E. 699). And a plaintiff who has introduced evidence enough to sustain a recovery for some amount, though not the full amount claimed, should not be nonsuited. Philpot v. Chattanooga R. Co., 114 Ga. 295 (40 S. E. 266); Howard v. Dayton Coal Co., 94 Ga. 416 (20 S. E. 336); Bloom v. Americus Grocery Co., 116 Ga. 784 (43 S. E. 54). A partial nonsuit is unknown to the law. In our view of the case the plaintiffs were not entitled to recover the second item of liquidated damages claimed for demur-rage, but may, if the jury should see proper to believe certain testimony introduced by them, be entitled to a verdict for the first item, of $140. If the second item had been the only cause of action, the court would have been justified in granting a non-suit ; but, for the reason just above stated, the court erred in not submitting the case to the jury and allowing them to construe the testimony adduced upon the first item of demurrage, for which the plaintiffs claimed the sum of $40 per day, under the contract.
“This charter party, made and concluded upon in the city of New York, this 29th day of May in the year one. thousand nine hundred and five, between Pendleton Brothers, agents of the brig ‘Jennie Hulbert/ of New York, of the burden of 419 tons or thereabouts, now lying in the harbor of New York, of the first part, and the Atlantic Lumber Company, of the second part, witnesseth: that the said party of the first part agrees on the freighting and chartering of the whole of said vessel (with the exception of the cabin, and necessary room for the crew and stowage of provisions, sails, and cables), or sufficient room for the cargo hereinafter mentioned, unto the said party of the second part, for a voyage from the port of Brunswick, Ga., to Cardenas, Cuba, on the following conditions and terms: — -The said vessel shall be tight, staunch, strong, and in every way fitted for such a voyage, and receive on board during the voyage the merchandise hereinafter mentioned, and no goods or merchandise shall be laden on board otherwise than from the said party of the second part, or their agent, without consent expressed in writing, and no lumber to be cut. The said party of the second part doth engage to provide and furnish to the said vessel a full and complete cargo, under and upon deck, of resawed pine lumber or boards, but not exceeding 325M feet. Charterers have privilege of shipping three spars, each not over 75 feet long, freight to be $10.00 each, and same to be loaded by charterers free of expense to vessel. The said party of the second part agrees to pay the said party of the first part, or agent, for the charter of freight of said vessel, as follows: $6.50 per thousand superficial feet board measure delivered. Freight payable upon proper delivery of cargo at port of discharge, in United States currency or its equivalent, without discount or commission. Vessel’s draft not to exceed fifteen feet when loaded. It is' agreed, that thirty thousand feet per running lay day, Sundays and legal holidays excepted, shall be allowed for loading the vessel, commencing from the time the vessel is ready to receive cargo and the captain reports himself so prepared, and cargo to be received at port of discharge as fast as the master can deliver same in suitable hours and weather, not exceeding thirty thousand per day. And for each and every day’s detention by default of the*718 party of the second part or their agent forty dollars, United States currency, per day, day by day, shall be paid by the party of the second part, or their agent, to the party of the first part or his agent. The cargo or cargoes to be received and delivered alongside within reach of vessel’s tackles. Vessel to employ charterer’s stevedore for loading, provided that rate is not higher than that charged by other responsible stevedores. Vessel to haul to wharf or anchorage designated by charterers or their agents to load and discharge, who have privilege of moving her afterwards by paying additional towage. Captain to sign bills of lading as required by charterers, without prejudice to this charter party, but at not less than chartered rates. It is understood that this vessel is now at New York and shall .proceed with all possible dispatch in ballast to enter upon this charter. The act of God, restraints of rulers and princes, public enemies, fire, flood, draughts, strikes, combinations, or any extraordinary occurrence beyond control of either party, and all and every other clangers, and accidents of the seas, rivers, and navigation, of whatsoever nature or kind, during said voyage, always mutually excepted. A commission of five per cent, upon the gross amount of this charter and demurrage is due and payable to James E. Ward & Co., upon the. signing hereof, vessel lost or not lost, charter cancelled or uncancelled. To the true and faithful performance of this charter we, the said parties, do here bind ourselves, our heirs, executors, administrators, and assigns, each to the other in the penal sum of the estimated amount of charter. In witness whereof we hereunto set our hands the day and year first above written.” Signed by the parties.
“New York, N. Y., July 5, 1905. It is agreed that in consideration of charterers furnishing a full and complete cargo, in which there is to be 100 M feet of kiln-dried boards, that vessel agrees to take all lumber in excess of 325 M feet, at the rate of $5.50 per M feet, all other conditions of charter party to remain as stated.
Pendleton Bros.”
The charter-party afforded the evidence that the plaintiffs would he entitled to $40 a day for every day’s detention caused by the fault of the Atlantic Lumber Company or its agent, and that the cargo of lumber was to be delivered alongside within reach of the vessel’s tackles, and that thirty thousand feet per running lay day was allowed for loading the vessel. Capt. Donald Wright, who
As we have already held, the court would not have erred in awarding a nonsuit if the plaintiffs’ case had depended entirely upon the demurrage claimed for delay after the cargo was loaded. The plaintiffs are not entitled to recover upon this item of alleged indebtedness arising from a breach of the contract. The plaintiffs’ claim is that they are entitled to $480 for twelve days delay caused by the defendant, after the ship’s cargo was loaded and the brig was ready to clear the port of Brunswick. The law requires that the shipper’s manifest be delivered to the custom-house authorities before the shipper clears and leaves the port; otherwise the vessel can not clear. While there may be dispute as to other facts in the ease, it appears to be undisputed that the only reason why the charterers refused to give the shipper’s manifest to the master of the ship was because the master would not sign a bill of lading unless they either paid the $140, demurrage claimed, or indorsed on the bill of lading the amount of demurrage claimed to be due •the vessel. Captain Wright, testifying upon this subject, said: “There were twelve days delay on account of the shippers not clearing the cargo from the custom-house and refusing to pay the demurrage already due. I offered to sign bills of lading under
Section 4 of the act of Congress of February 13, 1893 (27 Stat. c. 105, U. S. Comp. St. 1901, p. 29-17), entitled “An act referring to navigation of vessels, bills of lading, and to certain obligations, duties and rights in connection with carriage of property,” known as “the Harter act,” provides “ that it shall be the duty of the owner or owners, master or agent of any vessel transporting merchandise or property from or between ports of the United States and foreign ports, to issue to shippers of any lawful merchandise a bill of lading or shipping document; stating, among other things, the marks necessary for identification, number of packages or quantity, stating whether it be carrier’s or shipper’s weight, and apparent order or condition of such merchandise .or property delivered to.and received by the owner, master or agent of the vessel for transportation, and such document shall be prima facie evidence
In Reynolds v. The Joseph, 20 Fed. Cas. 621, the charter-party, among other things, provided, that bills of lading should be signed as presented on (cotton) press receipts, any difference to be settled before the ship sails; if in favor of the vessel, in cash; if in favor of the charterers, by draft of the captain on his consignees,
In Sleeper v. Puig, 22 Fed. Cas. 318, case No. 12940, in which a vessel was chartered from New York to Santa Cruz, and thence to Havana, the master of the ship filed a libel containing a charge for demurrage, which included a delay from April 24 to May 3, at $35 a day. One of the clauses of the charter-party was, “in case the vessel is longer detained by said party of the second part, or
The timer consumed in a dispute after the loading is ended would, it seems to us, be governed by the same principle as that consumed after the voyage is ended, which was the fact in the case just above cited. We have, therefore, no hesitation in holding that the owner of the vessel had no right in law to recover as demurrage the $40 per day for the tAvelve days which were spent by the master in endeavoring to procuré from the charterers a manifest which he could have obtained at once by giving them a bill of lading in accordance with section 4 of the act of 1893 to which we have heretofore referred, and thereafter proceeding, in some proper way, to enforce his claim for the demurrage for the time lost in loading the ship.
We reverse the judgment of the lower court in ordering a non-suit, solely upon the ground that the evidence in behalf of the plaintiffs would authorize some recovery as to the demurrage claimed in the first item. It is not essential, in order for the plaintiffs’ case to resist a nonsuit, that they should prove the exact amount of loss alleged in the petition to be due to the breach of the contract. For instance, if the petition alleged four and a half days, and the proof satisfied the jury that the ship lost two and a fourth days, the plaintiffs would be entitled to recover the stipulated
The lower court perhaps granted a nonsuit because some of the ■evidence in behalf of the plaintiffs was vague and contradictory; for it has several times been held that if the plaintiff’s evidence is contradictory and uncertain, the court, upon motion for nonsuit, should construe the evidence more strongly against the plaintiff. It must be borne in mind, however, that in this case two witnesses testified for the plaintiff, instead of merely the plaintiff himself, as in the case of Farmer v. Davenport, 118 Ga. 289 (45 S. E. 244), in which the ruling above referred to was made. In the present case the testimony of Capt. Wright makes a plain case for the plaintiffs, except that perhaps, under his testimony, there should be a deduction for a portion of the day (mentioned as one half of a day), which the witness said he thought proper to deduct, out of abundant justice to the defendants; and if this is deducted by the jury upon the trial, of course the amount of the plaintiffs’ recovery would be reduced to that extent. As held in Ray v. Green, 113 Ga. 920 (39 S. E. 470), if the plaintiff introduce any witness whose testimony is sufficient to establish the allegations of -the petition, it is error to grant a nonsuit.
Judgment reversed.