Rennell v. Kimball

87 Mass. 356 | Mass. | 1862

Hoar, J.

Both parties have alleged exceptions to the master’s report, and it becomes necessary to consider them in succession.

The first exception taken by the plaintiff was waived at the argument; and none of the remainder seem to us to be well founded, except the third, and so much of the ninth, which is a general exception, as depends upon the decision of the third.

The third exception is to the allowance of a charge against the ship of a broker’s commissions for effecting the charter. This was a charge incurred before the plaintiff purchased his interest in the vessel. The charter was a subsisting contract at that time, and affected the price which he would pay for his share. His purchase was made subject to the charter; and he had nothing to do with any expense before the date of it, unless by special agreement. This exception is therefore sustained, and the item in the account to which it refers must be disallowed.

We come next to the exceptions of the defendant, which are twenty-two in number. The first five are closely connected, and may be considered together.

The plaintiff purchased one twelfth of the vessel under a written contract, dated October 6, 1856, and a bill of sale of the same date. She was at that time undergoing repairs, which were completed after the purchase, and proved to be of an expensive character. The defendant contended that these should be charged to the plaintiff in proportion to his interest; but the plaintiff introduced parol evidence to show an agreement, 1. That the title to the vessel should not vest in him until the repairs were completed ; and 2. That the defendant should pay for the repairs that were to be put upon the vessel. The second exception is to the admission of testimony to prove the former of these agreements ; and it seems to us well taken. It was an agreement inconsistent with the written contract of the parties; and to give it effect would be to allow a written contract to be varied and controlled by parol evidence. But the finding on the other agreement makes this exception immaterial. The third exception is to the master’s finding “ an independent agreement that the defendant should pay for repairs to be put upon the vessel.” We can see no valid objection in law to this finding, if made upon sufficient evidence; and the master was not obliged to report the evidence. Indeed, whether it was an “ independent ” agreement was not important. It does not vary the written contract. That was for the sale of the vessel, and was completely executed. If the agreement to make the repairs was in consideration of the purchase, or was merely voluntary and without consideration, it is not now to be drawn in question, because it has been completely performed. The defendant is not sued upon it; apd the question is not whether it can be enforced. The only question seems to be, whether one who has rendered service or delivered property to another on the express statement that no charge would be made for it, can afterward claim compensation. If the defendant promised to make the repairs at his own expense exclusively, whether he was moved to do so by a desire to make a sale of the vessel, or was content to do it from a sense of having made a profitable bargain, is of no consequence, if he has made them. He cannot claim of the plaintiff payment under an implied contract, as for a purchase, when the plaintiff was assured that it was a gift. The third exception is therefore not sustained.

The fifth exception is that these two agreements found by the master were contradictory, and could not exist together. We do not perceive the force of the objection. If the title was not to vest in the purchaser till the repairs were completed, an agreement that the vendor should pay tor the repairs would seem not only to be consistent with such an arrangement, but to result from it.

The first and fourth exceptions relate to the evidence upon which the master found the agreements above stated. The direct evidence in relation to them was contradictory. The plaintiff, and a witness who seems to have been nearly identical with him in feeling and interest, testified that the agreements were made; the defendant and his son testified that they were not. To determine which of these witnesses were entitled to credit, the master resorted to evidence of the facts and circumstances attending the transaction, in order to ascertain which of the conflicting statements was, on the whole, most reasonable and probable ; and he has reported the evidence which was allowed under this head, and his conclusion upon it. Whether the evidence would fully justify his conclusion we do not determine, because the first exception seems to us well taken; and this decision necessarily requires the fourth also to be sustained. But in recommitting the report for revision on this point, we think it proper to remark that the admission of the testimony as to a usage or custom in the purchase of “ masters’ interests” in vessels was incorrect, and a finding based in any degree upon it would be erroneous. The evidence did not tend to prove any custom valid in law. But the actual value of the vessel at the time of the purchase, and the opportunities of the purchaser to examine her, may have had some legitimate bearing. Bradbury v. Dwight, 3 Met. 31. The object of that evidence was to show that the plaintiff would not have been likely to give so high a price as he did, unless the vessel were to be put in good repair without expense to him. But in deciding what weight is to be given to this argument, we are of opinion that the evidence which the master rejected as immaterial, and the rejection of which forms the ground of the first exception, was material and important. Whether the progress made in repairing her was such as to indicate the nature and extent of the repairs which would be required ; whether her apparent condition was such as her actual condition ultimately proved to be; would certainly be elements influential upon the mind of a purchaser, and affecting the probability of his making the completion of the repairs a condition of his purchase. We think evidence upon this point should have been admitted and regarded. The first exception is therefore sustained; and with it the fourth, in order that the evidence before disregarded may be considered by the master in connection with that upon which his opinion was formed.

It follows from the same premises that the sixth exception must be sustained, so far as to recommit the report to the master to revise his finding upon the charge of one twelfth of the repairs made subsequently to October 6, 1856; The same reason applies to the seventh exception.

The eighth, ninth, tenth, eleventh and twelfth exceptions are not properly before us as exceptions to the report of the master; but the facts stated in them might have formed the basis of a motion for a direction to the master to hear further evidence, or to state in his report the facts which the defendant seeks to show by affidavits. The right to a hearing upon these facts, upon any form of application suitably presented, was reserved by the judge who heard and reported the cause to the full court; and as the report is to be returned to the master for some purposes, the defendant may have leave to apply to the master for such further action upon the subject of these exceptions as he may think proper.

The thirteenth and fourteenth exceptiona are sustained, for the reason that the court regard the evidence reported insufficient to sustain the master’s finding that the plaintiff effected an insurance of the plaintiff’s interest in the vessel; and the account is to be corrected in accordance with this opinion.

The fifteenth, sixteenth and seventeenth exceptions are sustained, because the outward voyage terminated at Melbourne. And the report is to be recommitted to the master to add a proper credit to the defendant for the passage money of the passengers from Melbourne to Calcutta.

The eighteenth exception does not seem to be well founded in fact, and is unimportant in view of the results to which we have come on the other points in the cause.

The nineteenth exception is sustained; and the report is to be recommitted to the master to state an interest account on the defendant’s disbursements. This will of course require the allowance of interest only so long as the receipts do not equal the disbursements, and upon the excess merely ; and the parties will consider whether the difference in the result is likely to justify the expense of the investigation.

The twentieth exception would not prevent the acceptance of the master’s report, although it might delay the entry of a final decree. But we understand from the parties that it has become of no importance by the discontinuance of the trustee suits.

The twenty-first exception is sustained. Interest is not to be allowed during the pendency of a trustee suit upon a debt upon which no interest is due except as damages. Adams v. Cordis, 8 Pick. 269.

The twenty-second exception, which is a general one, is sustained so far as it is involved in the decision of the preceding exceptions.