Lindholm v. N. B. Borden & Co. , 280 F. 411 ( 1922 )

CARR, District Judge.

The charter party in this case was executed by G. M. Fryxell & Co., of Barcelona, Spain, as agents for the charterer. TJie sole question before the court is; Were they acting in behalf of Borden & Co. under such circumstances as bound the respondents as such charterers ?

It seems clear from the correspondence passing between Borden & Co. and Fryxell & Co. that the latter firm were acting in the capacity of brokers, obtaining orders for lumber to be supplied by the first-mentioned firm, the prices, terms, etc., subject to confirmation by Borden & Co. before the sale was binding upon them. It is also clear that the senior member of the firm of Borden & Co. was present in Spain prior to the making of the contract, and had guaranteed that the freights would not exceed certain amounts, depending upon the port of shipment, and that Fryxell & Co. had_these amounts as a guide in chartering vessels to carry the cargoes; that particular vessels were designated to carry certain cargoes, and that Borden & Co. designated at what port the vessel was to load. It appears, also, that the port of Fernandina, Fla., was so designated by Borden & Co. for the Rakel.

Taking the correspondence passing between Fryxell & Co. and Borden & Co., it appears to me that the parties understood that in making these charter parties Fryxell & Co. were acting for Borden & Co. Take the letter of the 28th of September from Fryxell & Co., which says Borden had taken guaranty of various contracts, and they had promised to use their best efforts to obtain suitable tonnage, and in which certain simulations should be contained in the charter parties. The contract with Alpera, to carry the cargo mentioned therein, the Rakel came to Fernandina, was made on the 27th of September, and. the charter party made on October 4lh. In the letter of October 5th, speaking of the charter of a vessel other than the Rakel, I find this:

"So, if yon destínate the Osman to load at Fernandina for Valencia, you will earn 5 per cent, the sld.”

The letter of November 6th, seems to me, clearly shows the understanding of the parties, and that Fryxell & Co. were acting for Borden & Co. in making the charters. The correspondence is rather voluminous, and time does not serve to notice it all bearing upon this question.. I find that N. B. Borden & Co. were the charterers, represented by Fryxell & Co. in executing the charter party as agents.

A decree will therefore be entered in favor of the libelant. The amount of same I understand will be agreed upon by proctors for the-parties.