Barker v. United States Fidelity & Guaranty Co. , 228 Mass. 421 ( 1917 )

De Courcy, J.

In 1904, James Hughes and Anson M. Bangs, doing business in New York City under the firm name of Hughes Brothers and Bangs, were engaged in excavating a channel in New York harbor. They entered into two separate charter parties with the owner, the National Dredging Company (the assignor of the plaintiff), for the tugboats known as the Anna W. and the Gerry; and gave a separate bond, with the defendant as surety, to secure the faithful performance of the obligations of each charter party. The tugboats were delivered to the charterers on September 10, 1904, and thereafter remained in then-possession, the Gerry until September 9, 1905, and the Anna W. until January 15, 1906.

This action is brought against the surety to recover for the alleged breach of each bond. The count on the bond given in connection with the Gerry is for a small balance of rent. The count on the bond given in connection with the Anna W. is to recover a balance of rent and also damages for injury to that tugboat beyond the ordinary wear and tear justified under the terms of the charter party. There was a verdict for the plaintiff, and the case is here on the defendant’s exceptions to the admission of testimony and to the refusal of the presiding judge to give certain rulings requested.

I. The bonds were signed, “Hughes Brothers and Bangs, By Anson M. Bangs, one of the firm.” The attesting clause recited “said principals have hereunto set their hands and seals,” but no seal was affixed. After the close of the evidence the judge reopened the case, and permitted the plaintiff to introduce testimony that the charter parties and the bonds were delivered in the city of New York. The plaintiff contended that the execution of the bond was valid and binding on the surety under the laws of New York; and called one of his own counsel as an expert, who testified that in his opinion these bonds were binding upon the surety under the New York law. The defendant’s exception is to the qualification of the witness as an expert. It was for the presiding judge to determine this preliminary question, and his decision must stand unless it was clearly wrong. Greene v. Corey, 210 Mass. 536. In view of the limited experience of the witness as to the law of a State where he had never practised, and his partisan interest as associate counsel, we think the judge well might have declined to accept him as an expert witness. On the other hand, the defendant reserved until the close of the testimony the point which made this evidence material, and the New York decisions on which the witness based his opinion were called to the attention of the judge. With some hesitation we overrule this exception.

2. Requests numbered one to nine inclusive raise the question of the validity of the bonds and the liability of the surety thereon in view of the signature of the firm name by one partner, and the absence of a seal. It is not necessary to consider whether the evidence would warrant a finding that the signature in the firm name by Anson M. Bangs was authorized or ratified by his co-partner, James Hughes, and binding under our law. See Russell v. Annable, 109 Mass. 72; Golding v. Brennan, 183 Mass. 286. The bonds were executed and delivered in New York city, where the contractors carried on business; and presumably the liability of the surety thereon must be determined by New York law. In view of the testimony of the expert witness as to the validity and effect of the bonds under that law these rulings could not be given.

3. Requests numbered twelve, fourteen, nineteen, twenty-two and forty were refused rightly. Without reciting the conflicting evidence in detail, it warranted the jury in finding that the decayed condition of the timbers and planking of the Anna W. found after her return by the charterers, was not wholly due to the absence of salt pockets, lack of ventilation and the use of fernaline as a wood preservative, as the defendant contended. There was also evidence for the jury, the weight of which was for them to determine, that the decay was ordinary wet rot, as distinguished from dry rot; and that it was caused by the seeping of water, — when the boat was between the load water line and the light water line, where the planking was strained and the boat leaky, — wetting the inside, and then drying when the boat was not deep in the water. There was also evidence that the leaks at the water line, and the consequent rotten condition of the timbers, were due to improper usage to which the Anna W. was subjected by the charterer, such as the collisions, the absence of proper fenders while towing heavy scows alongside, and the use of the tugboat head on to the dredge, for the purpose of holding the dredge in position “when the wind blew so hard that they couldn’t hold her with cables.” The judge rightly submitted to the jury these issues, with the conflicting evidence, and carefully instructed them to confine the plaintiff’s damages to the decayed condition of the boat shown to have been caused by misuse on the part of the charterers.

4. Requests twenty-one, twenty-eight, twenty-nine, thirty, thirty-one and thirty-two deal with the auditor’s report. This was only a part of the evidence, and the uncertainties complained of in that report were largely remedied by the additional testimony submitted to the jury. The judge was not obliged to select this part of the evidence for special comment, and no exception was taken to the way he dealt with it in the charge.

5. Requests twenty-six, twenty-seven and thirty-nine could not be given. On the findings of the auditor the notes taken by the owners when the charterers were behind in their payments, were taken as collateral security and not in payment. So far as any alleged extension of time was involved, the auditor further found that the notes were asked for in consequence of the suggestion of the defendant’s representative, made when he was notified of the arrears; and that the defendant suffered no actual harm by the transaction. See People v. Traes, 188 Mich. 345; Guaranty Co. v. Pressed Brick Co. 191 U. S. 416; Olmstead v. Latimer, 158 N. Y. 313.

6. The remaining requests may be disposed of briefly. Those numbered ten, sixteen and seventeen could not be given in view of the evidence, especially that showing that the charterers used the tugboat in an improper and careless manner. And see Barber Asphalt Paving Co. v. Mullen, 220 Mass. 308. For a like reason twenty-three and thirty-five were rightly refused. As twenty-four, twenty-five, thirty-four and thirty-eight have not been argued, it is enough to say that we discover no error in the refusal to give them.

Exceptions overruled.