26 Conn. 468 | Conn. | 1857
On the facts found in this case, we are of the opinion that, independently of those which relate to the custom which prevailed at New London in reference to the subject of the agreement between these parties, the plaintiff is entitled to relief. By the terms of that agreement, it was the duty of the defendants, on its fulfillment by the plaintiff, to pay to the latter his share, being the one-fifteenth part of the net proceeds of the oil and bone, and also one dollar on each barrel of sperm oil obtained during the voyage performed, as soon after its termination as it could be sold and the voyage made up by the defendants or their ships’ agent, after first deducting the advancements and supplies which had been made to the plaintiff. We do not put so rigid a construction on that contract as to require the defendants, at all events, to dispose of the articles composing the cargo immediately on the return of the vessel. There might be, from temporary causes, an extraordinary and sudden depression in their market value, which would justify the defendants, who had an interest in the property in common with the plaintiffs, in conducting as prudent men would under those circumstances, and deferring a sale of them until those causes should cease to operate. But on the other hand, they would not be warranted in withholding the property from sale because they might believe, however reasonably, that it would rapidly rise in the market, or from any other motive of mere speculation. We can not lose sight of the fact that the proportion of the proceeds to which the officers and crew of the vessel were entitled under this contract, was to be received by them only as a compensation for their services
But this is not the true ground on which the decision of this case should be placed. We think that the evidence adduced by the plaintiff, to prove a custom and usage prevailing at the port of New London, when the agreement between these parties was made, respecting the subject of it, was admissible, and that the plaintiff’is entitled to have his rights determined by it. It was one of the stipulations of that agreement that the parties should be subject to the usages and custom of that port in reference to the subject of that agreement. It is found that originally the shipping articles, for voyages like that in which the plaintiff was engaged, were substantially like that in this case, except that they did not contain any clause in relation to payment of the captain and crew after the oil was sold, and that then it was the general practice to apportion and deliver to them respectively their shares of the oil and bone specifically,—that the shipping articles were afterwards altered by inserting a clause providing that the oil should be sold and the voyage made up, and payment made to them as is provided in the agreement in the present case,—that about the time of such alteration oil began to be sold on credit, and in consequence of those changes the practice of apportioning the oil has been substantially discontinued, and a new practice, induced by the necessities of the mariners, the convenience of owners, and the giving of credit, grew up, and soon after that alteration, obtained, which became and between the last ten and
The principal objection which is made as to the proof or effect of this custom, is, that it is variant from, and contradictory to, the clear terms of the written agreement between these parties in regard to the mode in which the plaintiff should be paid for his services. It is plain that, whether such a custom as is here shown could affect the agreement in this case if it constituted no part of the express contract1 between the parties, but was introduced, as usages usually are, for the purpose of expounding the agreement, a point which it is unnecessary to decide, the objection here made has no application to this case; because the custom here shown constitutes a part of the express contract between the parties as contained in the written agreement. It is expressly referred to in the stipulation which has been mentioned respecting it, and therefore it is to be deemed to be a part of that stipulation as much as if it were set forth in terms in the written agreement. And if we suppose that the custom is recited therein in terms, all difficulty on this point vanishes. It requires no authority to show that it might be made a part of that agreement as well by reference as by recital. Nor if the custom were described in terms in connection with that stipulation, would it be repugnant to, or inconsistent with, the rest of the contract. It is only a modification or qualification of the preceding stipulation in the contract, in regard to the mode in which the plaintiff should be paid for his services, and providing for a different mode, in the exercise by him of the option reserved to him on that subject,—an alternative promise to perform a
The defendants claim that this bill should be dismissed on the ground that the plaintiff has adequate and complete remedy at law. If this were a case where a court of equity had not jurisdiction, under any circumstances, to grant relief, we should be obliged to sustain this objection; but as it appears by the agreement between these parties in reference to the compensation to which the plaintiff was to be entitled for his services, that the ascertainment of the fact whether the defendants were in arrear to the plaintiff, and if so to what amount, involves a matter of account between them, which is a subject over which a court of equity has general jurisdiction, we think it was incumbent on the defendants to make this objection at an earlier stage of the case. They should not be allowed to do so after an answer has been filed to the merits of the bill, and the expense of a hearing has been incurred, and therefore the court should not dismiss the bill on this ground, but should retain the cause and proceed to grant relief. Williams v. Niles & al., 24 Conn., 279.
In this opinion the other judges concurred.
Petition to be granted.