Finnegan v. Frank , 67 Ala. 21 ( 1880 )

STONE, J.

— The cause of action declared on in this case is a claim for -work and labor done, at the request of defendant, appellant here. It is brought in the name of Frank, and the concluding sentence of the complaint is in the following language r “ Which said sum -of money, with the interest, is now due, and is the property of the plaintiff.” This count fully sets forth all the constituents of an -implied contract to pay money ; for it avers that the defendant caused the repairs to be put on the boat. It fully complies with the statute, which authorizes such action to be “ prosecuted in the name of the party really interested, whether he has the legal title or not.” — Code of 1876, section 2890. If the averments of the complaint are proved, Finnegan is liable for the repairs, as for work and labor done at his request; and, as he interposed no sworn plea denying Frank’s ownership of the claim, and right to sue upon it, that question was not raised in the court below, and no question can be raised upon it here. Rule 29 of Practice in the Circuit Court. See form 8, of Complaints — Code, page 702. The bill of exceptions purports to set out all the evidence, and it shows the repairs were done at the instance of Finnegan. Under these principles, the plaintiff was clearly entitled to recover, without any reference to the terms of the charter party.

It is contended for appellant, that paragraphs 4 and 5 of the charter party are somewhat incompatible, and that the latter must be construed as explaining, qualifying and dominating the former. Properly construed, we think there is no incompatibility between them. Paragraph 4 contains a provision that is somewhat uncommon. Its language is, “ that the party of the second part — (Einnegan)—shall assume all liability for * * all and every wear and tear of said steamer Peerless ; and should the party of the first part, and party of the second part disagree as to such wear and tear, then it shall be left to arbitration, and such arbitration shall be binding on the respective parties to this charter.” This is a clear obligation on the part of the charterer to make good the wear and tear of the steamer during his possession of it. The 5th paragraph is as follows : “ The party of the second part agree to return to the party of the first part, at the expiration of the charter, the steamboat Peerless in the same condition as when received, ordinary wear and tear excepted, as set forth in the preceding section four.” Now, the rule for construing written instruments is, to give operation and effect to every clause, if it can be done. We do not presume parties intend to insert contradictory clauses in their written contracts. We industriously search for some interpretation which will reconcile them. Paragraph 4, with distinct particulai’ity, declares that the charterer shall make good, by compensation, the wear and tear of the steamboat. He could not replace that which would be lost or suffered by wear and tear. That was a physical impossibility. He could and would compensate for it, however, by paying to the owner a sum equal to the deterioration the boat would necessarily sustain in the use. This he bound himself to do, in paragraph 4. Paragraph 5 relates to the return of the boat, at the expiration of the bailment or charter. It could not be returned free from wear and tear, the necessary consequence of use. It could be returned “ in the same condition as when received, ordinary wear and tear excepted.” Repairs, if needed could restore it to that condition. Paragraph 4 provided for making good the losses incident to ordinary wear and tear. That injury was inevitable. But there might be other injury. Paragraph 5 made provision for it ; but inasmuch as paragraph 4 had already provided compensation for losses caused by ordinary wear and tear, it was neither necessary nor proper that a second provision should be inserted to meet them. Hence, the 5th paragraph, after providing for the return of the boat in the same condition as when received, excluded the question of wear and tear from its operation, and left it controlled by paragraph 4 alone. “ In the same condition as when received, ordinary wear and tear excepted, as set forth in the preceding section 4,” is its language.

Charter parties, like most other contracts, are made to assume very varying forms. Sometimes the owner parts only with his interest in the freights, retaining the command and control of the vessel. A class of such contracts may be found, in which only partial dominion and direction of the ship or boat is parted with. In yet another class, the bailment is complete, and the charterer, during the continuance of the contract, has absolute control of the vessel, its voyages, manning and direction. Parties, as a rule, can make their own contracts, can make them more or less binding; and when no rale of law ■ or public policy is contravened, courts have no discretion but to enforce their contracts as they make them. In the class last-above stated, the charterer, for the time, is clothed with all the rights, and subject to all the duties and liabilities which attach to ownership. —Abbott on Ship. marg. page 57, and note; Keene v. Davis, 1 Adolph & Ellis, 312; Pontchartrain R. R. Co., v. Heirne, 2 La. Annual, 129; Cutler v. Thurlo, 20 Me. 213; McCarter v. Huntinton, 15 Johns. 298; Perry v. Osborne, 5 Pick. 421.

Under the contract of charter in evidence in this case, Einnegan, during his term, became the quasi owner of the steamboat, entitled to all the benefits of ownership, and subject to all its liabilities, including those incurred for necessary repairs.— 2 Wait’s Actions, 157; Steele v. Burk, 14 Amer. Rep. 60.

Uüder the principles above declared, none of the rulings of the Circuit Court did the appellant any injury.

Affirmed.