Fortier v. Five Hundred & Forty-Three Thousand Three Hundred & Twenty-Five Feet of Pine Lumber , 22 F. 790 ( 1885 )

Coxe, J.

Of the issues involved in these actions but two will be examined: First. Was there an agreement binding upon the respondent to give good dispatch? Second. Did the libelants waive their claim for demurrage ?

Whether or not there was a valid agreement for good dispatch depends entirely upon the authority delegated to Warner & Becker. Their instructions were wholly in writing, and nowhere contained permission to insert such a clause. The nearest approach to it is found in the stipulation to load as fast as possible, but this language precludes the idea that the respondent intended to limit herself to any given number of days) Fairly construed, in view of preceding statements, it meant simply that every facility which the dock to which the barges were consigned, and the premises adjacent thereto, afforded, would be used in loading. For so much the brokers were authorized to contract, but surely no inference can be drawn from the language used which justified the insertion of a clause, which, if the libelants’ contention, is correct, bound the respondent to accomplish the absolute impossibility of loading in from two to four days. There w^.s nothing in the correspondence and nothing in the general character of the brokers’ employment to warrant it. They were the particular agents of the respondent to make this single agreement. Their authority was specific and should have been strictly pursued. Having exceeded it, the principal is not bound. Nor can it be said that the contract, as interpreted by the libelants, was, by any act of omission or commission, subsequently ratified. Poole knew nothing of the stipulation for good dispatch until shown the order by Fortier, four days after it was given. lie then, if his own statement is to be believed, distinctly repudiated it. But upon the uncontradieted testimony there was no ratification. Warned by a similar experience a short time previous, Poole endeavored, from the inception to the end of the negotiations, to avoid all claims for demurrage. He knew that by no human power could the barges be loaded in four days at the Brentwood dock. At the interview with Fortier and Rice, on the 29th, the entire correspondence with Warner & Becker was produced, and facts stated which proved to a demonstration that such rapid loading was entirely out of the question. The next day, in order that all doubt regarding his position might be removed, he telegraphed not to load if demurrage was demanded. In view of all this, to say that Poole consented to a construction which rendered his principal liable in damages if she failed to accomplish an impossibility is to reflect seriously upon his sanity. That the respondent fairly performed the contract thus limited and defined, is, it is thought, sufficiently established by the proof. Indeed, it is not seriously disputed that the loading progressed as rapidly as the situation at the Brentwood dock permitted.

Second. Did the libelants waive their claim for demurrage ? On the first of November Poole sent to the agent of the Brentwood Lumber Company the following dispatch: “Fortier says no demurrage, but load as fast as possible.” The respondent contends that this telegram was duly authorized by Fortier. The libelants insist that it contains a false statement, and was without Fortier’s knowledge or consent. What is the proof ? Poole testifies that on November 1st, at his office, he showed Fortier Crossfield’s dispatch of the day previous, in which he says that the question of demurrage must he settled at Buffalo ; that after reading it Fortier replied, substantially, that he should not demand demurrage, hut vessels must be loaded as fast as possible; that the dispatch in question was then written, and after being shown to Fortier, was sent with his full knowledge and approbation. Poole is partially corroborated by the clerk in his office, who recollects seeing a dispatch handed to Fortier on that day. He also remembers that after Fortier had given his consent, a messenger was called and the dispatch delivered to him. Fortier denies that such a conversation or transaction took place at any time. He thinks, howevor, that he was at Poole’s office and had an interview on November 1st, but he does not give the particulars of the conversation. He says that on the previous evening, having in his hands Rice’s dispatch advising him of Poole’s direction not to load unless demurrage was waived, he stepped into Poole’s office and told him that the vessels had not arrived; that there was no person at Penetanguishone authorized to demand demurrage, and that he wanted Poole to load according to order. That this was a most extraordinary, irrational and inconsequential statement, unless it bore upon the question in dispute, which had been referred to them for settlement by Crossfield’s telegram, will hardly be denied. When asked if the telegram waiving demurrage was shown- him, Fortier, without saying positively that it was not, evidently desires to leave that impression, for he testified that, although a telegram was shown him, it had reference to an entirely different matter. This alleged telegram was not produced or satisfactorily accounted for in any way. Poole denies that he showed Fortier any telegram but the one waiving demurrage. • *

It will be observed that Poole’s evidence is positive and affirmative, Fortier’s negative and indirect. But, disregarding the disputed testimony, what are the presumptions to be drawn from the admitted facts? What are the probabilities? In order to answer these questions intelligently, it is necessary to understand the situation and the surroundings of the parties. Fortier knew that Poole disputed his interpretation of the order for good dispatch, and insisted that the brokers had no authority to insert that clause; he knew that Poole contended that he was only required to load as fast as possible at the Brentwood dock. He knew that Poole had telegraphed his people at Penetanguishene not to load unless all claims for demurrage were abandoned; that Rice and Crossfield had refused to settle the question of demurrage; that unless it was settled he must abandon all expectation of procuring a cargo upon this order. His vessels had then passed Port Huron, and had entered the open lake. There was no way to recall them or direct them to another port. The season was growing late, and it can hardly be supposed that Fortier overlooked the fact that even with good dispatch, as he interpreted the order, his barges could not, in all probability, be released before November 24th or 25th; so near the close of navigation, that even if another commission could be obtained it would be hazardous to undertake it. The alternative thus offered Fortier was either to load without demurrage, or refuse to do so and lose his freight. With his barges at an obscure and distant port, the opportunity for further employment during the season was by no means certain. Was it wise for him to abandon a certainty for a doubtful and disputed claim which could only be realized upon, if at all, at the end of a protracted litigation? Is it not reasonable to suppose that in these circumstances, even though he felt himself aggrieved, he concluded to accept the lesser of two evils which confronted him ? It is incredible that this barrier of demurrage, which was regarded as insurmountable by Poole, could have, been removed without some notice being taken of it by those most interested; that his apparently unconditional surrender should have taken place without even a murmur of comment or inquiry. And yet, if the libelants’ theory is correct, the subject was never alluded to, though the parties met in consultation after the question had assumed this serious shape. Is this position reasonable? To maintain it evidence must be rejected, probability disregarded, and Poole found guilty of a most atrocious piece of chicanery. He must be convicted of a fraud, alike infamous and transparent; a trick which could not have remained long undiscovered, and which would brand him not only as a scoundrel, but also as a simpleton. There is nothing in the proof to warrant such a conclusion. The weight of evidence and the presumptions are with the respondent upon this issue. It follows that the libels must be dismissed, with -costs.