Piaggio v. Somerville , 119 Miss. 6 ( 1918 )

Smith, C. J.,

delivered the opinion of the court.

This is an action in assumpsit in which the appellee was the plaintiff and the appellant, was the defendant in the court below, and they will be hereinafter so designated.

The declaration in substance alleges that a charter party was entered into between the owners of the American schooner Henry S. Little and the W. A. Powell Transport Company, by the terms of which the vessel was to transport a cargo of lumber from the Gulf of Mexico to a port on the west coast of the United Kingdom, London, Lisbon, or the west coast of Italy; the W. A. Powell Transport Company, or its assigns, having the right to designate the port of loading and of destination; that this charter party was assigned by the W. A. Powell Transport Company to Hunter Benn & Co., who assigned it to,the-plaintiff; that on the 27th day of February, 1917, the plaintiff assigned this charter party to the defendant, which assignment and the acceptance thereof by the defendant are as follows:

“G-ulfport, Miss., Feby. 22, 1917.

“For and in consideration of one thousand, five hundred dollars payable in cash to J. W. Somerville, on clearance of this vessal at Mobile, Albania, under this present charter, the within charter party of the Henry S. Little is hereby transferred to Henry Piaggio, he, the said Piaggio, agreeing to fulfill all the terms and conditions of. same without recourse on either W. A. Powell - Transport Company, Hunter Benn & Company or J. W. Somerville.

“Accepted on the above terms.

“[Signed] J. W. Someeviele.

HeNey Piaggio. ’'

The declaration further alleges that the owners of the vessel declined to permit it to sail to any of the ports designated in the charter party because of the increased perils of the sea due to the unrestricted submarine warfare then being conducted by Germany in disregard of the rights of neutrals, and in lieu thereof paid to the defendant the sum of seven thousand, five hundred dollars-in full .settlement of all claims he might have against them under the charter party, and prayed for a judgment against the defendant in the sum of one thousand, five hundred dollars, together with interest thereon, etc. The defendant’s plea in substance alleges:

That he requested the owners-of the vessel to transport, under the terms of the charter party, a cargo of lumber to a port in Italy, and that they declined so to do, “giving as a reason therefor the increased peril of the sea due to the fact that subsequent to the date of the execution of said charter party Germany had given notice to the world that she would- on the 1st day of February, 1917, begin a general and unrestricted submarine warfare and would destroy all vessels of whatever flag in the waters adjacent to Great Britain, France, and Italy, which declaration made subject to destruction the schooner aforesaid, which until said time, being an American schooner, was not so imperiled. That defendant when so advised explained to the owners of said schooner that he was obligated to deliver the cargo in Italy, and that his obligation had been made and created after the transfer of the schooner aforesaid by the plaintiff, and that the failure of said schooner to take on said cargo would subject the defendant to a loss of between fifteen thousand and twenty thousand dollars. That thereupon he again demanded the carrying out of the charter party, which the owners thereof refused. Whereupon the owners of said schooner offered to pay to defendant the sum of seven thousand, five hundred dollars, not as a legal obligation upon them to do so, but because of their willingness in the unlooked for situation to bear part of the loss occasioned the defendant by their refusal to take the cargo to its destination. That the defendant was advised by his counsel that the owners of said schooner could not be compelled to take said cargo and were not liable for his damage for their refusal, and that any amount they would offer to contribute towards defendant’s loss should be accepted for the reason that defendant otherwise would be without remedy and compelled to bear the entire loss. Whereupon the defendant accepted the said sum of seven thousand, five hundred dollars, not in any manner in lieu of compliance by the owners of said schooner with their charter obligation, but in diminution, as far as it extended, of his losses occasioned by said refusal. That the loss sustained by defendant because of said refusal, over and above the compensation heretofore mentioned, was approximately twelve thousand, five hundred dollars, and that through no fault or act of his the owners of said schooner refused to comply with their charter party and refused to make possible the occurrence of the condition upon which plaintiff’s right to recover is predicated. ’ ’

To this plea the plaintiff replied that He “is not precluded from recovering by reason of anything set up in said plea, because he says that when said sum of seven thousand, five hundred dollars was paid by the owners of said vessel to the said Henry Piaggio, defendant, as set up in said plea, that it was paid with the understanding and agreement between the said Piaggio and the said owners of said vessel that thereafter no right of actic; based upon said charter party should be enforced or attempted to be enforced by the defendant Piaggio against said vessel, or its owners, and that all matters of controversy between the said vessel and its owners on the one part, and the defendant Piaggio on the other, were thereby closed and terminated; and plaintiff says that said charter party was thereby canceled and annulled.”

This replication was demurred to, and, the demurrer beign overruled, the defendant declined to plead further, and judgment was rendered for the plaintiff for the amount sued for.

The contention of the defendant is that the clearance of the schooner Henry S. Little at Mobile under the charter party is a condition precedent to any obligation on his part to pay the plaintiff the money sued for, to which the plaintiff replies that the performance of this condition, if such it is, was waived by the defendant when he accepted the seven thousand, five hundred dollars,, from the owners of the vessel, and released them from further liability to him under the charter party, to which defendant rejoins that his acceptance of the money and release of the owners of the vessel from further liability under the charter party cannot be construed to be a waiver of the condition precedent for the reason that he could not have enforced its performance had he tried to do so; the owners of the vessel having been released from the obligation of the charter party because of the danger of being sunk by a German submarine to which the vessel would have been subjected had it attempted to make the voyage.

The charter party contains no such qualification of the obligation. Consequently the owners of .the vessel were hound to transport the cargo of lumber as provided therein, notwithstanding the risk to the vessel of being sunk by a submarine, or pay damages for their failure so to do, for the rule is that when a party by his own contract creates a duty or charge upon himself he is bound to discharge it, although’ so to do should subsequently become unexpectedly burdensome or even impossible; the answer to the objection of hardship in all such cases being that it might háve been guarded against by a proper stipulation. Paradine v. Jane, Aleyn, 26, 82 English Reprint, 897; Jemison v. McDaniel, 25 Miss. 83; Harmon v. Fleming, 25 Miss. 135; Abby v. Billups, 35 Miss. 618, 72 Am. Dec. 143; Mitchell v. Hancock County, 91 Miss. 414, 45 So. 571, 15 L. R. A. (N. S.) 833, 124 Am. St. Rep. 706; Anson on Contracts (2d American Ed.), 424; Harmon on Contracts, 824 ; 3 Elliott on Contracts, section 1891; 13 C. J. 639; 6 R. C. L. 997; note L. R. A. 1916F. 10.

There are, however, certain classes of events the occurring of which are said to excuse from performance because “they are not within the contract,” for the reason that it cannot reasonably be supposed that either party would have so intended had they contemplated their occurrence when the contract was entered into, so that the promisor cannot be said to have accepted specifically nor promised unconditionally in respect to them. Baily v. De Crespigny, L. R. 4 Q. B. 185, 15 English Ruling Cases, 799. These three classes are: First, a subsequent change in the law, whereby performance becomes unlawful. Baily v. De Crespigny, L. R. 4 Q. B. 180, 15 English Ruling Cases, 799; Heart v. Tennessee Breuing Co., 121 Tenn. 69, 113 S. W. 364, 19 L. R. A. (N. S.) 964, 130 Am. St. Rep, 753. Second, the destruction, from no default of either party, of the specific thing, the continued existence of which is essential to the performance of the contract. Taylor v. Caldwell, 3 B. & S. 826, 32 L. J. Q. B. 164, 6 English Ruling Cases, 603; Dexter v. Norton, 47 N. Y. 62, 7 Am. Rep. 415. And, third, the death or incapacitating illness of the promisor in a contract which has for its object the rendering by him of personal services. Robinson v. Davison, L. R. 6 Ex. 269; Smith v. Preston, 170 Ill. 179, 48 N. E. 688.

The case at bar cannot be referred to any of these classes, and, in order for it to be brought within the exception to the rale of absolute liability, it will be necessary for ns to add thereto a fourth, class, to wit, a subsequent foreign war or a subsequent change by one or more of the belligerents in the method of waging such a war which renders performance more burdensome to the promisor than when the contract was entered into, but so to do would be without the reason of the exception and contrary to the authorities. 13 C. J. 640; note L. R. A. 1916F, 72; Ducas Co. v. Bayer Co. (Sup.), 163 N. Y. Supp. 32; Richard & Co. v. Wreschner, 174 App. Div. 484, 156 N. Y. Supp. 1054, 158 N. Y. Supp. 1129.

There are a few cases which cannot b.e referred to any of the three foregoing classes, such as Kinzer Construction Co. v. State, 68 Misc. Rep. 423, 125 N. Y. Supp. 45, and The Kronprinzess Cecilie, 244 U. S. 12, 37 Sup. Ct. 490, 61 L. Ed. 960, which last-mentioned case is erroneously supposed by counsel for the defendant to sustain his contention. Iii that case a German-owned vessel sailed from New York to Bremenhaven via Plymouth, England, and Cherbourg, Prance, on the eve of the outbreak of the recent war, having on board, among other articles, a number of kegs of gold consigned to Plymouth and Cherbourg. In order to escape capture by the French or English, it turned back before reaching either of the last-named ports and returned the gold to the shippers, who instituted libels against it to recover the damages alleged to have been sustained by them because of its failure to deliver the gold. The probabilities of thé vessel’s capture, had it continued its voyage to either the French or the English port, were so great that the court held that it was justified in turning back, and that its owners were thereby excused from performing their contract to transport and deliver the gold, for the reason that the capture of the vessel was a risk “which, if it had been dealt with (when the contract of shipment was made), it cannot be believed that the contractee would have demanded or the contractor would have assumed.” No such reason can be assigned here for the exclusion from the contract of the risk which the Henry S. Little would have run by making the voyage to Italy demanded by the defendant when we remember that commerce was not suspended because of Germany’s unrestricted submarine warfare; but, on the contrary, vessels owned by citizens of both neutral and belligerent countries sailed continuously in the waters in which that warfare was being waged. Furness v. Muller (D. C.), 232 Fed. 186; Graves v. Miami S. S. Co., 29 Misc. Rep. 645, 61 N. Y. Supp. 115; Elsey v. Stamps, 10 Lea (Tenn.) 709; Foster’s Agency v. Romaine, 32 T. L. R. 331; The Harriman, 9 Wall, 161, 19 L. Ed. 629.

It follows from the foregoing views that the judgment rendered in the lower court is correct, even should it be conceded, which counsel for the plaintiff do not, that the clearance of the Henry S. Little at the port of Mobile under the charter party is a condition precedent to liability on the part of the defendant, that condition, if such it is, having been waived by the release by -the defendant of the vessel’s obligation to make the voyage; but we are of the opinion that the clearance of the vessel is’ not a condition precedent to liability, but is simply the time fixed for the payment of the money sued for, and consequently that the failure of the vessel to clear at the port under the charter party, for whatever reason, is immaterial, for the consideration of the defendant’s promise to pay was the assignment to him of the charter party so that it constituted a present liability on his part, payment simply being postponed until the clearance of the vessel at Mobile, and, since that event did not happen, payment became due within a reasonable time. Randall v. Johnson, 59 Miss. 317, 42 Am. Rep. 365; Hughes v. McEwen, 112 Miss. 36, 72 So. 848, L. R. A. 1917B, 1048; 13 C. J. 684.

Affirmed.