18 Mich. 180 | Mich. | 1869
Rogers, the intestate, brought trover to recover damages, on the ground of an alleged conversion, by the plaintiffs in error, of what he claimed to be his special property in a steam tug called the Union.
It appears that in the winter and spring of 1866, Rogers was residing at Bay City, in this state, and that Van Valkenburg resided at Lockport in the state of New York. That the Union being at or near Bay City, and the property of Van Valkenburg, Rogers, in February of that year, opened a correspondence with Van Valkenburg, in order to charter the Union for the season, to run in connection with another tug called the Wave. It was thought that the tug belonging to Van Valkenburg would require some fitting up before commencing business, and that the season had already so far advanced as to make considerable diligence necessary to prepare her for service.
This opinion seems to have had much influence in placing Rogers and Van Valkenburg in the position they subsequently occupied.
Finally, in answer to a letter, written by Rogers on the 12th of March, Van Valkenburg telegraphed on the 17th of the same month to Rogers that he could commence fitting up the tug.
Rogers died after recovering judgment in the court below, and the cause was revived against his administratrix.
Upon the trial, Rogers, to maintain- his action, contended that the correspondence, by letter and telegraph, embodied a contract giving to him the right of possession and use of the tug for the entire season.
This position was contested by the plaintiffs in error, who maintained that neither the letters and telegram relied upon by Rogers, when, standing alone, or taken in connection with the correspondence produced, constituted or proved any such contract. It having appeared that all the negotiations in relation to the transaction were by letter and telegraph, the Circuit Judge instructed the jury that the letters submitted by Rogers, being those of February 26th, March 7th and 12th, and the telegram of March 17th, taken together, constituted the contract between the parties for the hiring of the tug, and that it entitled Rogers to the possession and use of the boat until the close of the season of navigation for 1866.
This charge raises the vital question in the case. As there was no dispute as to the authenticity and due‘reception of the letters and telegram, and as the language employed was capable of being understood without extrinsic aid, it was the duty of the court to tell the jury what that correspondence contained, and what it meant. There was no error, therefore, in assuming to instruct the jury upon the subject. We think, however, that the instruction given was erroneous. It appears to us that while the correspondence showed that the parties had begun to make a bargain, it also showed that no bargain was perfected. The first letter of Rogers, being that of February 26th, contained a distinct proposition for
This offer of Van Valkenburg was vague and general, and fell short of an unqualified proposition to charter the boat to Rogers for the whole season, and the latter replied to it under date of March 12th, in the following terms:
“Yours of the 7th inst: is at hand, I think favorably of your plan, and will take tug TJnion, with the understanding that your towing is to be done at any time that you may call for it, but would like to have some definite understanding about what I am to do, or about what I am to give. If you know about what amount of logs you have to tow, please state how much I shall pay you besides doing your towing.
It is high time that fitting and repairing had commenced. If I take her, painting and repairing should commence this week, and I would like to have you telegraph as soon as you get this, because nearly every other boat is ready to come out as soon as the ice clears from the river. I will do just as I agree, and as the season is far advanced and little time left in which to make repairs, and it seems a long time to wait for an answer by mail, I think it would be best to let me hear from you by telegraph. And whatever you want done in' relation to a bargain, perhaps you could have it done through Mr. Westover, after informing him what you want.”
It was in reply to this that the short telegram was transmitted, and which was evidently meant to inform Rogers that he could commence the work of repairing at once, and leave the consummation of the bargain to a more convenient occasion.
In this the telegram was responsive to the sense of the letter of Rogers which called it out. From that letter it is quite obvious that Rogers was anxious to secure the
The parties were disposed to trust each other, and their correspondence shows that they meant that Rogers should commence fitting up the boat without delay, in order to have her ready for service, and that the bargain which they had corresponded about could be completed afterwards. It does not appear, however, that the bargain was ever accomplished.
The subsequent correspondence submitted in evidence by the plaintiffs in error, tends strongly to confirm the opinion already expressed, and there is no occasion, therefore, for reviewing it, or for inquiring whether it was right to disconnect it from the rest, when seeking to ascertain whether the correspondence constituted a contract or not.
As the letters and telegram did not establish a contract, the objection that no revenue stamp was affixed, of course, disappears.
According to the view of the case which has been presented, it is unnecessary to consider the other points discussed at the bar.
The judgment below should be reversed, with costs, and a new trial ordered.