McCullough v. Hellweg , 66 Md. 269 ( 1886 )

Yellott, J.,

delivered the opinion of the Court.

The appellee, who was the plaintiff below, purchased of Albert Edelin in St. Mary’s County, fifty-three cords of fire-wood, and shipped it on board a vessel belonging to the appellant. By the terms of the contract, as shown by the bill of lading, this cargo was to be delivered in Baltimore, at Hellweg’s wharf, to the appellee or his assigns. The bill of lading did not determine the amount for freight to be paid, and after the arrival of the vessel at the said wharf, and the unloading-of about one cord and one-half cord of the wood, the captain was directed by tho appellant to carry the cargo to McCullough’s wharf, which is about four miles distant from the point of delivery agreed upon in the said bill of lading. The appellee brought an action of replevin for the wood, and obtained a judgment for the property replevied, and damages for its detention ; and from that judgment an appeal has been taken.

There is evidence in this record tending to show that although the amount for freight was not specified in the bill of. lading, it was agreed between the captain of the vessel and the appellee, that the charge for freight should be $1.50 per cord. It was also shown by the testimony of a number of witnesses, who are large dealers in wood, “ that there has been, and now is, a well known custom existing in the port of Baltimore, that the master of a vessel shall first, unload his cargo of wood upon the wharf of the owner of the cargo, and pile the same in a suitable form for measurement and inspection ; that it is then measured and the freight ascertained according to the measurement, and that freight is not demandable before the cargo is landed on the wharf.” It was also shown that the sum of one dollar and a half per cord was a fair rate for the freight, and that the plaintiff was then and there always ready to pay that amount, and did afterward pay it into Court upon the refusal of the defendant to receive it.

There is no evidence tending to contradict the testimony in relation to the existence of the aforesaid custom in the port of Baltimore. As has been already stated the appellee introduced evidence tending to show that the sum of $1.50 was a reasonable rate for freight; and the captain of the vessel testifies that, authorized by the appellant, he told the appellee that the charge would be $2.00 per cord; and the proof shows that, in consequence of the refusal of the latter to pay this charge, the cargo was carried to McCullough’s wharf, where it was subsequently taken by the sheriff under the writ of replevin.

As a defence to this action of replevin the appellant contended that he had a lien on the cargo for freight, and could therefore hold possession until the charges for freight were paid. His right to hold possession under an existing lien cannot be controverted, but the very existence of this lien is the vital question in the case. It is apparent that unless he had placed himself in a position to make a demand for freight there could be no lien for money due for freight. It has been decided in a number of cases that no freight is earned unless the contract to safely deliver the cargo has been complied with, and that the master of the vessel is the agent of its owner authorized to enter into such contract. Ferguson vs. Cappeau, 6 H. & J., 399; Wirgman’s Adm’r vs. Mactier, 1 G. & J., 150.

By the terms of the contract, signed by the master of the vessel, the cargo was to be delivered in good order at the wharf of the appellee. The mere arrival of the vessel at the wharf was not a full compliance with the obligations of the contract. Even while the vessel lay at the wharf unloaded the cargo was subject to the exercise of the vendor’s right of stoppage in transitu. James vs. Griffin, 2 Mee. & W., 624; Tucker vs. Humphrey, 4 Bing., 516.

Not until the goods had been delivered at the wharf, was there a termination of the voyage by a compliance with the terms of the contract as expressed in the bill of lading.

This question was carefully considered and determined by the Supreme Court of the United States in the case of Mordecai vs. Lindsay, Law. Ed. B. 18, 486; Same case, 5 Wall., 481. Speaking of the right of the ship-owner to retain the goods until the charge for freight is paid, Mr. Justice Clifford says: “His right to do so is beyond doubt, but he cannot detain the goods on board the ship until the freight is paid, as the consignee or owner of the cargo would then have no opportunity of examining their condition. * * * * Delivery on the wharf in the case of goods transported by ships is sufficient under our law, if due notice be given to the consignees and the different consignments be properly separated, so as to be open to inspection and conveniently accessible to their respective owners.”

The uncontradicted testimony of a number of witnesses, who were examined in the Court below, proved the existence of a custom in the port of Baltimore, requiring a cargo of wood to be unloaded on the wharf of the owner of such cargo, in suitable form for measurement and inspection, before freight can be demanded. When there is an established usage or custom in regard to certain transactions, parties to such transactions are presumed to have contracted with reference to such usage or custom, in the absence of any special agreement to the contrary. There is no proof of any such special agreement between these parties. So far from this, by the terms of the bill of lading the cargo was to he delivered at the wharf of the appellee. It therefore follows that the appellant, not having complied with the obligations of his contract, the learned Judge in the Court beloAv properly instructed the jury that the defendant had no such special property in the wood as would defeat the action, and that the plaintiff was entitled to recover. The granting of this instruction necessarily involved the rejection of the three prayers offered by the defendant, all of which, are founded on the assumption of the existence of a lien on the property for freight due and demandable.

It appears from the record that during the trial in this action of replevin, instituted for the recovery of the cargo of wood, the plaintiff offered the defendant $79.50 as payment for freight at $1.50 per cord. This offer was refused by the defendant and the plaintiff then paid the money into Court. The defendant still refusing to receive the money, the plaintiff was allowed to withdraw it, and the defendant has excepted to this ruling of the Court.

The defendant contends that this offer was such a tender as estopped the plaintiff from subsequently denying that there was a lien on the cargo. But the proper construction to be put on this offer of the plaintiff is that it was, in no technical sense, a tender but simply an effort to compromise a matter not really involved in the pending controversy. A tender must have relation to the issue in the cause. In an action ex contractu the defendant may tender the amount he believes to be due, and the tender operates as an estoppel so that he cannot subsequently deny that the amount tendered is due. It may also relieve him from the payment of costs if no greater sum is recovered by the plaintiff. Bennett vs. Francis, 2 Bos. & Pul., 550; Columbia Build. Asso. vs. Crump, 42 Md., 192.

But the offer made by the plaintiff had no reference to the issue then to be determined, which was the right of property in the cargo taken under the writ of replevin and damages for its detention. It was an offer to adjust and settle another matter, not then involved in the issue on trial, and which could not then and there be determined by the Court and jury. Indeed the whole procedure in relation to this offer was manifestly irregular and not sanctioned by any precedent established by adjudication; and when the defendant refused to accept the sum offered, the learned Judge who sat in the Court below was clearly right in allowing it to be withdrawn by the plaintiff

(Decided 17th December, 1886.)

There being no error in any óf the rulings of the Court below the judgment must be affirmed.

Judgment affirmed.