80 So. 342 | Miss. | 1918
delivered the opinion of the court.
This is an action in assumpsit in which the appellee was the plaintiff and the appellant, was the defendant in the court below, and they will be hereinafter so designated.
The declaration in substance alleges that a charter party was entered into between the owners of the American schooner Henry S. Little and the W. A. Powell Transport Company, by the terms of which the vessel was to transport a cargo of lumber from the Gulf of Mexico to a port on the west coast of the United Kingdom, London, Lisbon, or the west coast of Italy; the W. A. Powell Transport Company, or its assigns, having the right to designate the port of loading and of destination; that this charter party was assigned by the W. A. Powell
“G-ulfport, Miss., Feby. 22, 1917.
“For and in consideration of one thousand, five hundred dollars payable in cash to J. W. Somerville, on clearance of this vessal at Mobile, Albania, under this present charter, the within charter party of the Henry S. Little is hereby transferred to Henry Piaggio, he, the said Piaggio, agreeing to fulfill all the terms and conditions of. same without recourse on either W. A. Powell - Transport Company, Hunter Benn & Company or J. W. Somerville.
“Accepted on the above terms.
“[Signed] J. W. Someeviele.
HeNey Piaggio. ’'
The declaration further alleges that the owners of the vessel declined to permit it to sail to any of the ports designated in the charter party because of the increased perils of the sea due to the unrestricted submarine warfare then being conducted by Germany in disregard of the rights of neutrals, and in lieu thereof paid to the defendant the sum of seven thousand, five hundred dollars-in full .settlement of all claims he might have against them under the charter party, and prayed for a judgment against the defendant in the sum of one thousand, five hundred dollars, together with interest thereon, etc. The defendant’s plea in substance alleges:
That he requested the owners-of the vessel to transport, under the terms of the charter party, a cargo of lumber to a port in Italy, and that they declined so to do, “giving as a reason therefor the increased peril of the sea due to the fact that subsequent to the date of the execution of said charter party Germany had given notice to the world that she would- on the 1st day of February, 1917, begin a general and unrestricted submarine warfare and would destroy all vessels of whatever flag in
This replication was demurred to, and, the demurrer beign overruled, the defendant declined to plead further, and judgment was rendered for the plaintiff for the amount sued for.
The contention of the defendant is that the clearance of the schooner Henry S. Little at Mobile under the charter party is a condition precedent to any obligation on his part to pay the plaintiff the money sued for, to which the plaintiff replies that the performance of this condition, if such it is, was waived by the defendant when he accepted the seven thousand, five hundred dollars,, from the owners of the vessel, and released them from further liability to him under the charter party, to which defendant rejoins that his acceptance of the money and release of the owners of the vessel from further liability under the charter party cannot be construed to be a waiver of the condition precedent for the reason that he could not have enforced its performance had he tried to do so; the owners of the vessel having been released from the obligation of the charter party because of the danger of being sunk by a German submarine to which the vessel would have been subjected had it attempted to make the voyage.
There are, however, certain classes of events the occurring of which are said to excuse from performance because “they are not within the contract,” for the reason that it cannot reasonably be supposed that either party would have so intended had they contemplated their occurrence when the contract was entered into, so that the promisor cannot be said to have accepted specifically nor promised unconditionally in respect to them. Baily v. De Crespigny, L. R. 4 Q. B. 185, 15 English Ruling Cases, 799. These three classes are: First, a subsequent change in the law, whereby performance becomes unlawful. Baily v. De Crespigny, L. R. 4 Q. B. 180, 15 English Ruling Cases, 799; Heart v. Tennessee Breuing Co., 121 Tenn. 69, 113 S. W. 364, 19 L. R. A. (N. S.) 964, 130 Am. St. Rep, 753. Second, the destruction, from no default of either party, of the specific thing, the continued existence of which is essential to the performance of the contract. Taylor v. Caldwell, 3 B. & S. 826, 32 L. J. Q. B.
The case at bar cannot be referred to any of these classes, and, in order for it to be brought within the exception to the rale of absolute liability, it will be necessary for ns to add thereto a fourth, class, to wit, a subsequent foreign war or a subsequent change by one or more of the belligerents in the method of waging such a war which renders performance more burdensome to the promisor than when the contract was entered into, but so to do would be without the reason of the exception and contrary to the authorities. 13 C. J. 640; note L. R. A. 1916F, 72; Ducas Co. v. Bayer Co. (Sup.), 163 N. Y. Supp. 32; Richard & Co. v. Wreschner, 174 App. Div. 484, 156 N. Y. Supp. 1054, 158 N. Y. Supp. 1129.
There are a few cases which cannot b.e referred to any of the three foregoing classes, such as Kinzer Construction Co. v. State, 68 Misc. Rep. 423, 125 N. Y. Supp. 45, and The Kronprinzess Cecilie, 244 U. S. 12, 37 Sup. Ct. 490, 61 L. Ed. 960, which last-mentioned case is erroneously supposed by counsel for the defendant to sustain his contention. Iii that case a German-owned vessel sailed from New York to Bremenhaven via Plymouth, England, and Cherbourg, Prance, on the eve of the outbreak of the recent war, having on board, among other articles, a number of kegs of gold consigned to Plymouth and Cherbourg. In order to escape capture by the French or English, it turned back before reaching either of the last-named ports and returned the gold to the shippers, who instituted libels against it to recover the damages alleged to have been sustained by them because of its failure to deliver the gold. The probabilities of thé vessel’s capture, had it continued its voyage to either the French or the English port, were so great that the court held that
It follows from the foregoing views that the judgment rendered in the lower court is correct, even should it be conceded, which counsel for the plaintiff do not, that the clearance of the Henry S. Little at the port of Mobile under the charter party is a condition precedent to liability on the part of the defendant, that condition, if such it is, having been waived by the release by -the defendant of the vessel’s obligation to make the voyage; but we are of the opinion that the clearance of the vessel is’ not a condition precedent to liability, but is simply the time fixed for the payment of the money sued for, and consequently that the failure of the vessel to clear at the port under the charter party, for whatever reason, is immaterial, for the consideration of the defendant’s promise to pay was the assignment to him of the charter party so that it constituted a present liability on his part, payment simply being postponed until the clearance of the vessel at Mobile, and, since that event did not happen, payment became due within a reasonable time. Randall
Affirmed.