P. & G. Lorillard v. Palmer , 1 Lock. Rev. Cas. 425 ( 1799 )


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  • The court held further that it is only when the voyage is broken up on the part of the ship owner or master, or the completion of it becomes unlawful, that the contract is dissolved.

    But the court also held, that as the special verdict found “ that the vessel was sunk and the cargo lost, and without any default of the defendants or their agents, the goods were wholly spoiled and lost,” that if the plaintiffs had a cause of action they could not recover in that form of action, as the jury, by their special verdict had negatived the gravamen alleged, to wit, the negligence of the defendants; and that the Court of Errors could not look to any other facts, than those found by the jury. But the plaintiffs had no cause of action, since the contract was not dissolved, and the defendant had a right to retain the goods until he could proceed on his voyage, or the plaintiffs tendered the freight or the contract was rescinded by mutual agreement.

    See as to S. P. Ogden v. Barker, 18 J. R. 87, where Spencer, Ch. J., says “• The leading facts in this case are so entirely like those in Palmer v. Lorillard, that there is no distinguishing the two cases. To that decision we are bound to submit.”

    In Stoughton v. Rappalo, 3 Serg. and Rawle, 559, this question as to the effect of a blockade in dissolving a contract of charter party is raised. Tilghman, Chief Justice says it is a difficult question, but that it was not necessary to decide it in that ease, and the court gave no opinion upon it.

    In the case of Palmer v. Lorillard, on the question as to the form of action; that it should have been trover and not assumpsit, so as to sustain a judgment on the facts found by special verdict, Chancellor Kent, who delivered the opinion of the court says : “How this point came to be omitted •in the Supreme Court, I do not know. The question before us arises upon the special verdict in which we can not avoid comparing the verdict with the declaration. Nor do I think that this case comes within the rule that an objection not *428taken in the court below, can not be taken here. That rule was only intended to be applied to objections that the party may be deemed by his silence to have waived, and which when waived, still leave the merits of the case to rest with the judgment. But if the foundation of the action has manifestly failed, we can not, without shocking the common sense of justice, allow the recovery to stand.”

    The judgment was unanimously reversed.

    The reporter adds this note: “ Though the whole court were for the reversal, yet a few of the members confined their opinion to the first point; (as to the finding of no negligence by the special verdict;) A great majority however concurred with the Chancellor generally, that the judgment ought to be reversed on both points.”

Document Info

Citation Numbers: 1 Lock. Rev. Cas. 425

Filed Date: 7/1/1799

Precedential Status: Precedential

Modified Date: 11/9/2024