Barker v. Borzone , 48 Md. 474 ( 1878 )

Bartol, O. J.,

delivered the opinion of the Court.

This suit was brought against the appellants, for an alleged breach by them of a contract of charter.

It appears that on the 5th day of October 1876, the appellee through his agents in Baltimore, chartered to the appellants, the bark “ Maria Margherita Borzone,” then at Genoa, to carry a cargo of wheat or corn from Baltimore to Europe.

The charter-party contained the following stipulation : “ It is agreed that the lay-days for loading and discharging shall be as follows: commencing from the time the vessel is ready to receive or discharge cargo, but not before 1st January, and not later than 31st January 1877, 30 running days for loading and discharging, and 48 hours to wait for orders in Queenstown or Falmouth, further delays to count as lay-days.”

The charter-party also provided that the vessel should “ ceil and load under United States or English Lloyd’s inspection.”

She arrived at the port of Baltimore on the 26th day of January 1877, at 4 o’clock P. M., and entered at the custom house on the 27th.

' On the 31st day of January, having obtained a certificate of inspection, from the inspector of a local marine insurance company, the bark was tendered to the, char_ terers, on that day at 10 o’clock A. M. They refused to accept her ; first because they claimed that under the charter party January 31st, should have been a lay-day, and the tender not having been made until January. 31st, lay-days would not commence until February 1st, and secondly because they did not recognize as valid the certificate of a local inspector. A certificate was then obtained from J. L. Sanford, Inspector for Lloyd, and the bark was again tendered on the same day, between 12 M. and 3 o’clock P. M. The charterers again refused, claiming that the tender was too late; that according to the custom of the port of Baltimore, masters are required to give one day’s, notice before their lay-days can commence. The appellee proceeded to obtain another charter, and brought this suit, to recover damages for the loss occasioned by the refusal of the appellants to accept the bark

It was conceded in argument by the appellee’s counsel,, that the certificate of the local inspector, first obtained,, was insufficient, the charter party requiring that the vessel should be ceiled, &c., under “United States’ or English Lloyd’s inspection.” But he maintains that a proper certificate having been obtained, and the bark having been tendered, as before stated, on the 31st day of January, between the hours of 12 M. and 3 P. M ; the stipulations of the charter-party were complied with, and the appellants were then bound to receive her.

In contracts of this kind time is of the essence, as said by Parsons (1 Maritime Law, 260,) “in all commercial and maritime affairs, time is an element of great value and importance.”

In this case the appellee assumed the obligation that the 'vessel should be in readiness to receive cargo, so that the lay-days “ should commence not later than the 31st of January. If this stipulation was broken, and the bark was tendered too late, the appellants were not bound to receive her. In Shadforth vs. Higgin, 3 Camp., 385, the charterers agreed to furnish a cargo at Jamaica, to he taken on hoard in the usual manner, in time for the July convoy, provided the ship arrives out and ready hy the 25th of June. She-did not reach Jamaica till the 3rd of July. It was held that the charterers were released. That the arrival of the ship hy the 25th of June was a condition precedent. So in Lowher vs. Bangs, 2 Wall., 728, “ where the charter-party provided that the ship, then in a distant sea, would proceed from one port named, (where it was expected she would he,) to another port named, (where the charterer expected to load her,) ivith all possible dispatch.”

The Supreme Court held that this was “ a warranty that she would so proceed, and goes to the root of the contract. Accordingly if a vessel go to a port out of the direct course, the charterer may throw up the charter-party.”

These are examples showing the materiality of time in contracts of this kind, and the importance of a punctual compliance with the terms of the charter.

The question in this case is whether the tender of the bark was made in time.

The charter-party provides that “ the lay-days shall commence from the time the vessel is ready to receive cargo, [but not before 1st January and not later than 31st January 1877], these words, between brackets, are inserted in manuscript in the charter-party which is on a printed form, showing that the dates were considered by the parties material and' important.

Under this stipulation it was the right of the appellee to tender his vessel in readiness to receive cargo at any time within the period named ; and the lay days would then begin to run ; provided however they should “commence not before the first or later than the 31st of January.”

The appellee’s counsel argues that the contract was com-' plied with, if the bark was in readiness and was tendered at any time during the 31st day of January. His proposition is that if money is to be paid, or an act done on .a certain day, the party has the whole day in which to perr. form the contract.

This is no doubt the general rule of law. Savary vs. Goe, 3 Wash. C. C. R., 140; Startup vs. Macdonald, 6 Man. & Gr., 593. In this case Alderson, B. said “the general rule, I conceive, is that wherever in cases not governed by particular customs of trade, the parties oblige themselves to the performance of duties within a certain number of days, they have until the last minute of the last day to perform their obligation. The only qualification,, that I am aware of, to this rule is that in acts requiring time in order that they may be completely performed, the party must at all events tender to do the act, at such a period before the end of. the last day as, if the tender be accepted, will leave him sufficient time to complete his performance before the end of the day.” , ^

The case of Startup vs. Macdonald, from which this citation is made, is a very interesting one, it was first tried in the Court of Common Pleas, and was taken on appeal before the Exchequer Chamber, where it was twice argued. The general principles governing the question of the time, when a tender of performance of a contract may be made were fully discussed, and. many authorities cited. Thp general proposition as laid down by Baron Alderson was, concurred in, and would seem to be well settled. .It follows that if in the contract before us, the appellee had agreed that the vessel should be tendered ready to receive cargo on any day not before the 1st, or later than the ¿1st of January, the right of the appellee to recover would be clear and unquestionable, because he would have performed the contract according to its terms, and there would be no room for resorting to extrinsic evidence with regard to the custom or usage of trade, to the contrary. Such evidence would in that case be inadmissible, because it could have no effect except to vary or contradict the express terms of the contract.. 2 Parsons on Con., (6th Ed.,) 546 m. Case of Schooner Reeside, 2 Sumner, 567 ; Hall vs. Hurlbut, Taney’s C. C. D., 599 ; Ins. Co. vs. Wright, 2 Wall., 470, 471 ; Foley vs. Woodside, 6 Md., 38.

But such are not the terms of the contract. The stipulation is not that the vessel shall be ready by a particular day, but that the lay-days shall not commence after a particular day, viz., not later than 31 si of January. It is clear that the appellants were entitled to at least one lay-day in January.

Now the question arises, if the vessel be tendered on that day, when do the lay-days commence ? On this point the contract is silent, it must depend on the custom or usage, if any, which exists in the' port of Baltimore. It appears that testimony on this subject was offered by the appellants, tending to prove “that for many years prior to the making of the charter-party in question, and up to the day of trial, there existed a uniform, well known and well established custom in the shipping trade at the port of Baltimore, whereby the owners, master or agents of vessels were, required after the arrival in said port of a vessel chartered to take a cargo, to complete her fittings for receiving such cargo, and then procure a proper certificate that she had been inspected and was ready to receive such cargo, and that upon the delivery of such certificate, with a notice of her readiness to receive cargo, to the charterers, the lay-days of such vessel toould commence on the day following the delivery of such certificate, and not before, and that there was no division of a lay-day recognized, and that if a vessel used any portion of a working day, the charterers were chargeable with one entire lay-day as of that date."

The testimony as to the custom was taken subject to exception, and was afterwards on motion of the appellee, excluded from the consideration of the jury.

We think in this ruling there was error.

“If the terms are technical or equivocal on the face of the instrument, or made so by reference to extraneous circumstances, parol evidence of the usage or practice in the trade, is admissible to explain the meaning.” Salmon Falls M. Go. vs. Goddard, 14 Howard. 447.

In Jppleman vs. Fisher, 34 Md., 540, (653) this Court said: “The principle upon which usage or custom is applied to the interpretation of contracts is very familiar, and of constant occurrence. It may be resorted to in the absence of express stipulations, or where the meaning of the parties is uncertain or doubtful upon the language used, or where the usage of the trade or business to which the contract relates, or with reference to which it was made, may afford explanation or supply deficiencies in the instrument. Technical, local or doubtful words may be thus explained. ¡So when stipulations in the contract refer to matters outside the instrument, parol proof of extraneous facts may be necessary to interpret their meaning.”

The usage here proved is not repugnant to or inconsistent with the terms of the contract, it relates, to á matter upon which the contract is silent, that is to say, whether the lay-days commence on the same day notice is given that the ship is ready, or not until the day after such notice. On this subject the proof of the usage seems to be full and explicit and it ought to have been submitted to the jury.

It appeared on the cross-examination of the witnesses by whom the custom was proved, that it “ applies only to a case where the time for the commencement of the lay-days is not mentioned in the charter-party,” and therefore the appellee’s counsel contends it has no application to this case; but it is quite clear this objection is not well taken, for in the charter-party under consideration the particular day on which the lay-days were to commence is riot mentioned. They were to begin on any day not before the 1st, or after the 31st of January. In such case a notification was necessary when the ship was ready to receive cargo, and the same having been given on the 31st of January between twelve and three o’clock, the custom or usage of the trade determines whether the lay-days commence on that day or the day following.

The evidence of custom having been erroneously excluded it was error to grant the prayer of the appellee, and the Court’s instruction was also erroneous ; it was proper for the evidence of the custom or usage to be submitted to the jury and the first, second and fifth prayers of the appellants ought to have been granted.

We find no error in the ruling upon the appellants’ first bill of exceptions, the nature and character of the business of the appellants, and the motives and reasons actuating them in making the particular contract in question, could not in any manner control its construction or affect the rights of the appellee, evidence on that subject was therefore properly excluded.

The evidence offered in the appellants’ second hill of exceptions, was designed to bring home to the appellee’s agents a knowledge -of the usage or custom of trade, by proving their course of proceeding under another charter-party made with other persons, similar in its terms to the one sued upon in this case. But we think this evidence was properly excluded, for the reason that it does not appear that the transaction referred to, did not occur after the controversy in the present case had arisen. In which case it would be clearly inadmissible for the purpose of proving their knowledge of the custom, at the time the contract was made, or at the time it was to be performed.

But parties may be bound to a custom or usage, without showing affirmatively their knowledge of its existence; this knowledge may be presumed. But as we said in Appleman vs. Fisher, in such case, “ the usage must be clearly shown to be general and uniform, so as to give rise to the presumption that the parties were acquainted with it, and intended to contract with reference to it.” 34 Md., 554.

(Decided 2nd May, 1878.)

The third, fourth and sixth prayers of the appellants were properly refused. We do not consider that the rights of the parties depend exclusively upon the construction of the charter-party per se. This must he read in the light of the evidence as to the custom or usage of the trade to which it relates, if the jury shall find such a custom to exist; and upon this the defence of the appellants must rest.

As the case must he sent back for a new trial, it is proper to say that the measure of damages, in case a verdict should he found for the plaintiff is correctly stated in the defendants’ seventh prayer which was granted.

Judgment reversed, and new trial ordered.