Pew & Son v. Laughlin

3 F. 39 | E.D. Pa. | 1880

ButijEU, D. J.

The view I entertain respecting the execu-' tion of the charter-party renders unnecessary the consideration of any other question raised by tho case. It may not be improper, however, to say that on examining the testimony as presented at the former hearing I found no serious difficulty in the libellant’s way, except that which relates to the execution of the paper. My views respecting this question, as the evidence then presented it, were reduced to writing; but, as the libellant applied for permission to take further testimony, the opinion was not filed. It may not bo uninteresting to insert it hero, as preliminary to an examination of the testimony since taken:

“The execution of the charter-party is not proved. That Captain Gardner signed it, is shown; but that the libellant signed it, is not. The contract need not have been reduced to-writing, in the absence of an agreement that it should bo. But there was such an agreement, and until the paper was fully executed neither party was bound. The libellant produces a paper signed by Captain Gardner, to which his name, also, appears. That this is his signature, or that he authorized it to be put there, however, is not shown. The paper was returned to Hager & Co., from New York, with the libellant’s name upon it. But this does” not even tend to prove that he put it there, nor does the deposition of Mr. Pew tend to prove it. He signed a paper, he says, of which he attaches a copy to his deposition. This ‘copy’ is found, on comparison, to be similar to the paper in controversy, except in certain important erasures and alterations, which the latter shows, and the ‘copy’ does not. But, even if we overlook this serious difference, how can it be affirmed that the paper in controversy is the original, signed by Mr. Pew, and not itself a copy, also ? The testimony is but secondary evidence of the fact involved, and is therefore incompetent. If it were shown that the original is lost, or beyond the libellant’s reach, the evidence would be admissible and sufficient; but in the absence of this it cannot be listened to. Had the paper in controversy been exhibited to Mr. Pew, and his signature thus proved, the difficulty would have been avoided.”

On the case going back the paper was exhibited to Mr. Pew, and he testifies to the genuineness of his signature. But it now appears that when the paper came to him, executed by captain Gardner, the important alteration before referred to had not been made, but that it was made before the paper left Mr. Pew’s, hands, (for his agent’s hands were his,) in advance of delivery; and I find no evidence that the respondents assented to this alteration, or were ever informed of it. The libellant’s counsel say : “There is no direct testimony as to whether the alteration was assented to by any of the owners, but all the circumstances show, and all the witnesses say, that it must have been assented to, though owing to the lapse of time — about five years — they could not remember.” I do not, however, find any such such circumstances ; and the expressions of the witnesses, referred to, fall far short of the necessary proof. The purpose in reducing contracts to writing is to secure the most satisfactory evidence of their existence and terms — in other words, to avoid the Berious dangers incident to parol testimony.

One who seeks to avoid the language in which such an instrument is drawn, as by proving the assent of parties to a change, or otherwise, must be held to full and satisfactory proof of the fact. Such proof can readily be secured by having the assent noted or distinctly expressed in the presence of witnesses who will remember it. Here there is no such evidence. The testimony of Messrs. Hager and Stetson amounts to nothing. Neither has any recollection on the subject. The statement of the first, that he “must have received the approval of Mr. Stetson to the alteration,” is objectionable on the double ground that Mr. Stetson had no power to assent for the respondents, and that it is an inference simply which the witness cannot draw. The statement of Mr, Stetson that “it is a universal custom to do that thing — that is, to obtain the assent of the broker to an alteration in a charter-party — is of no consequence, because such assent, in the absence of authority to give it, as here, would be valueless ; and his further statement that if Mr. Hager asked “my assent I should have felt that I would have committed a forgery if I had not consulted the captain or managing owner, but I do not remember the circumstances,” is of as little consequence. It does not reach the dignity of evidence. Inference is built upon inference. Mr. Hager having inferred that he “must have obtained Mr. Stetson’s assent,” the latter infers (granted Mr. Hager did) that he obtained the captain’s or owners’. Where inferences are admissible they are to be drawn by the court. Here we see no foundation for any that can aid the libellant. If written instruments might be avoided, or their terms changed, upon such testimony as the libellant here invokes, they would cease to be of value.

That the alteration materially changes the contract as originally written is not open to controversy. The letters of Eobinson & Co. and Pew & Son show how important to the latter the change was considered. It is urged, however, that the alteration was not made until after the instrument had been fully executed, and that being then made without au_ thority from, or fault of, the libellant, it does not affect the contract as entered into by the parties. It is true that such an alteration (or, more accurately speaking, spoliation) would not affect the contractual relations of the parties. 1 Green. Bv. § 566. But, unfortunately for the libellant, this alteration, as already suggested, did not occur after the execution of the instrument had been completed. It is true, Pew & Son had signed the paper, but it still remained in their hands, (Robinson & Co. being their agents,) and was completely subject to their will. Until delivered, as the evidence of their contract, the execution was incomplete. It had been forwarded to them to sign and return to Hager & Co., who should hold it for the parties; and until this was done the transaction was not completed, and no responsibility on the part of the appellant attached. As Mr. Birch, clerk for Hager & Co. testifies, the vessel “would not be considered chartered unless the paper came back signed.” It did come back signed, but, unfortunately, at this time it was not the same, as when the respondents’ representative, Gardner, signed it. As respects the libellant it speaks as of the date when (through their agents) they delivered it to Hager & Co. Thus it is seen that the alteration was not made after the instrument was fully executed; that it is not a case of spoliation, such as is referred to by the authorities cited; but, on the contrary, that the parties did not execute the same instrument, did not agree to the same thing, and consequently had no contract to which they were mutually bound. The only terms to which the libellant could be held are those shown by the paper when delivered by their agent, and these terms (to which the respondents did not agree) are the terms recited in the libel and here sought to be enforced.

The libel must be dismissed, and the respondents’ counsel will prepare a decree accordingly.