Pawson's Adm'rs v. Donnell , 1 G. & J. 1 ( 1829 )

Dorsey J.

at this term delivered the opinion of the Court. Of the refusal of the Court to grant the instruction prayed for, which forms the ground’ of appeal on the appellant’s first bill of exceptions, we entirely approve. Had the instruction been given, it would have been a palpable invasion of the unquestionable and exclusive right of the jury: that of deciding on facts, of which contradictory testimony is adduced. The appellees “had offered in evidence, that it was the usage among ship owners and masters, not to charge freight where the ship was in ballast, for any articles shipped by the captain on his own account.” The appellant then “offered in evidence that there was no usage as above stated, and that the captain was liable to freight to the owner, like any other person, if he chose to exact it.” In such a state of the proof, the court could not do otherwise than reject the prayer, calling on them to decide a fact thus controverted.

In the appellant’s second bill of exceptions are involved questions of great magnitude to the commercial world and of much intrinsic difficulty; and we regret that we are called to the decision of these questions, without proof of commercial usages upon the subject. In the argument it is conceded by both parties, that the .owner of the ship and cargo has the uncontroled power of breaking up or changing the voyage, but they differ most widely as to the consequences which would ensue, and the nature of the responsibilities, to which the owner would thereby be subjected. For the appellant it was contended that this well established prerogative of the ship owner, entered into the contemplation of .Donnell and Pawson, who contracted in reference to it.' That upon its exercise no new liabilities were created; the Canton privilege no longer formed any part of the contract; nor had Pawson any claim to indemnity for its loss. This is assuming much broader ground than was occupied by the prayer to the court below: which appears predicated on the admission of Pawson’s title to recover, but for his alleged voluntary relinquishment of his right. The appellees, on the other hand, insist, that upon the change of the voyage, Pawson was not only entitled to claim an indemnification for the injuries thereby sustained : but the full value of the Canton privilege, exempt from all the casualties to which it was naturally liable: and also the whole compensation, stipulated as an allowance to the supercargo, whether the services for which it was equivalent were ever rendered or not; all which on the part of the appellants, is strongly controverted. . The principles, contended for by each party, are perhaps-stretched further than reason or justice would sanction or public policy requires. And it may readily be imagined, how the counsel on both sides, if yielding to the impulse of their clients interest, would have changed hands in the argument, had, a new modification been given to the facts, in the case, which whilst it varied its aspect, would not in the slightest degree have removed it from the operation of the principles now attempted to be applied to it. Suppose, for example, 1lio voyage contracted for had been from Baltimore to London, and thence home with a cargo of dry goods, the stipulated compensation of Captain Pawson, in addition to his monthly wages, being three hundred dollars; but no privilege. After the sailing of the vessel, owing to a sudden depression in the price of dry goods, Donnell changes the voyage: directs that eight thousand doubloons he taken on board at London: be transported to Coquimbo: there converted into a full cargo of copper: which was to he sold at Canton, and the proceeds of sale there invested by Pawson in a suitable invoice were to be brought home by him, in the Chesapeake to Baltimore: under such circumstances would Pawson?s counsel, as they now do, insist on the compensation fixed in the original contract, when the emolument incident to the substituted voyage, by universal, usage of trade, were twenty times as great as those which belonged to the original? Impelled by the interests of their client, they surely would require, the accustomed reward for the services rendered. 'Whilst the counsel for the appellant, if influenced exclusively by bis interests, would insist on his discharge, upon payment of the sum specified in the agreement.-—Bui. suppose another ease slightly variant in circumstances, hut the same in principle—A. ship-owner in Baltimore, for a fixed compensation (say B900) employs a captain to uavigate his vessel to the Havana: there to sell his outward and purchase a return cargo. Before, she reaches the mouth of the Chesapeake, her destination is changed; she is ordered on a trading voyage that may last for years; she is to double Cape Horn and return by the Cape of Good Hope; would it he attempted to limit the reward for the captain’s services to the sum mentioned in the original agreement? But to present the question on facts more immediately before us, suppose, the Chesapeake on her originally destined voyage, before she had passed the waters of Maryland, had been ordered to .Worfolk, there to sell her cargo and return to Baltimore; could it he pro-tended that Pawson would in such circumstances have been entitled to the two thousand dollars, and the undiminished value of the Canton privilege!

If the rule contended for either by the appellants or the appellees be a good one, it must work both ways, as well to cases where the length of the voyage is increased, as where it is diminished. In its operation it would always work injustice to one party or the other; and in the latter case, it would, in effect, annihilate that acknowledged and invaluable right in ship owners, of controling the destination of their property; as its enjoyment would be visited by penalties more than equivalent to the losses apprehended from the original, or benefits anticipated from the substituted voyage. Reason, justice and public policy, are never to be lost sight of in the construction of commercial contracts; in unison with which, it would be difficult to reduce the rules insisted on by the parties to this controversy. The principles which should govern cases like the present, according to our views, (in the absence of all commercial usage on the subject,) are these. If by the exercise of this important privilege, a special injury is done to the captain or supercargo, the ship owner must bear the loss; he must make a reasonable indemnity. If on the contrary, by the change of voyage the captain or supercargo be necessarily discharged from the performance of all the duties, for which a remuneration has been stipulated, his claim to such remuneration is thereby extinguished. If a part of the duties have been executed, then such a proportion of the stipulated compensation should be allowed, as appears just, on comparing the services rendered, under the voyage originally contemplated, with those which remain unperformed. For the interpolated part of the voyage the usual compensation must be paid. The parties should be placed, as nearly as may be, in the same condition in which they would have stood, had a previous contract, for the voyage as changed, been entered into between them. To all the customary emoluments of a captain or supercargo, on such a voyage, are those officers respectively entitled.

The County Court, we therefore think erred, in the appellant’s second bill of exceptions, in refusing to instruct the Jury as prayed, that “ the plaintiff (below) is not entitled to any compensation, for the alleged loss of the privilege of bringing home the twenty-five tons from Cantonthat being a privilege, so inseparably connected with the vessel’s destination io Canton; that upon its ceasing, as it did, to be one of the termini of the voyage, the privilege of necessity expired with it.

With the opinion of the court below in the third hill of exceptions we concur. The alleged misconduct of the captain, having produced neither injury nor inconvenience to the appellant, forms no defence to the present action.

According to the views before expressed by us, the County Court were in error in their refusal to grant the prayer in the appellant’s fourth bill of exceptions; and also in the opinion and direction they thereon gave io the jury, and in conformity with the same views, we approve of their refusal of the opinion and direction prayed for in the appellant’s fifth bill of exceptions.

The decision made by this court on the second bill of exceptions, renders it unnecessary for them to examine the opinion of the County Court in the appellant’s sixth bill of exceptions: as by that decision the appellant’s prayer becomes wholly immaterial and irrelevant to the issues in the cause; and let the determination of the County Court be what it might, it would furnish no ground for reversing their judgment. The same may be said in relation to the appellant’s ninth bill of of exceptions.

Of the refusal of the Court below to grant the prayer in the appellant’s seventh bill of exceptions we in part approve and in part disapprove. They were wrong in refusing to instruct the jury that the plaintiffs below were not entitled to recover the said sum of two thousand dollars: but were right in refusing to instruct the jury that they were not entitled io recover “ any part thereof.”

We concur with the County Court in their refusal to grant the appellant’s prayer contained in his eighth bill of exceptions.

There being cross appeals in this case, it now becomes necessary to consider the exceptions on the pari: of the a ppellees. It has been attempted to sustain the opinion of the County Court in the appellee’s first bill of exceptions, on the ground that Edwards Sy Steioart were the agents not of Donnell, but of Pawson, and, that he only must be answerable for their acts. With this doctrine to the extent to which it is urged we cannot concur. It is in proof, that it was the known and necessary custom of trade at Chili and at Coquimbo in the business in which Pawson was engaged, to employ agents on shore, such as Edwards Sy Stewart. That the selection of such agents in this case, was not made bona fide, and with discretion, there is no insinuation. The consequences of the neglect, omissions, or misconduct of Edwards Sy Stewart, in their agency, not imputable to Pawson, must be borne by Donnell; in fact they are his agents, though appointed by, and under the immediate control of Pawson. For their acts therefore, after Pawson’s death, not flowing from any instructions previously given by him, in relation to DonnelVs funds, they only, and to him alone, are answerable. This doctrine is fully sustained by the opinion of this court in the case of Jackson vs. The Union Bank of Maryland, 6 Harr. & Johns. 150, and by the late decision of Judge Hallowell before a special jury in the district court of the city and county of Philadelphia. In refusing, therefore, to give the instruction prayed for,, we think the County Court erred.

The prayer in the appellee’s second bill of exceptions being in the alternative, the court below were right in instructing the jury, that if Pawson in his lifetime made the investment in gold, that he must bear the loss; but in the instruction given on the latter branch of the alternative, we conceive the court were wrong, upon the grounds assumed by us in the consideration of the appellee’s first bill of exceptions. It being a question, under all the proofs and circumstances of the case, fairly open for discussion before the jury; whether the purchase of the gold was made mujer any instruction or authority from captain Pawson. By their decision, they have determined that matter of fact in the affirmative, and consequently overleaped one of the barriers interposed between the court and the jury.

The first branch of the third exception of the appellee’s, is inaccurately drawn; and if construed according to its obvious import, might have been rejected by the court for irrelevancy to the matters in issue before them. It prays an instruction to the jury “that the plaintiff (below) is not entitled to recover of the defendant, the amount of any gold or silver, which the said Pawson, or his agents, the said Edwards &f Stewart, may have put on board the Chesapeake, of their own accord, and without the knowledge, consent or orders of the defendant (below) and which may have been afterwards seized by the government of Chili, and confiscated as having been attempted to be exported contrary to the laws of the land.” The plaintiff did not claim to recover the amount of any gold or silver; on the contrary, the gist of the controversy was his disclaimer of all interest in the gold or the funds with which it was purchased. The prayer was therefore inapplicable to the issue. But give to the exception that construction which has been ascribed to it in the argument; that-it presents the question whether the amount of this gold, could by the jury be discounted from any claim which Pawson might have upon Donnell, and the prayer is too wide to be gratified in extenso. If the investment in gold was made by Pawson in his lifetime, or in obedience to his-directions, then the discount contended for should have been sanctioned by the court; but if the investment were the act of Edwards fy Stewart without orders from Pawson, then the loss of the gold shipped must fall upon Donnell. The instruction of the County Court embraces both alternatives, and is therefore erroneous. In their opinion, on the latter part of this exception, regarding the ratification by Donnell, of the purchase- and shipment of the gold, we concur with the County Court.

Having assented to the decisions of the court below, contained in the appellant’s first, third, fifth and eighth bills of exceptions ; but dissented from those in the appellant’s second, fourth and seventh bills of exceptions; and having dissented from their opinions in the appellees three biffs of exceptions:

Their judgment is reversed and a procedendo awarded.