A. O. Andersen & Co. v. Lamborn , 112 Misc. 235 ( 1920 )

Giegerich, J.

The plaintiff moves for judgment upon the pleadings, consisting of a complaint and a demurrer interposed upon the ground of insufficiency. The complaint contains, among others, the following allegations: That on or about December 29, 1919, the Susquehanna Steamship Company, Inc., a domestic corporation, made and delivered to the plaintiff an order of which the following is a copy:

“ Susquehanna Steamship Company, Inc.,

‘ ‘ 52 Broadway,

“ New York, December 29,1919.

“ Messrs. Lamborn & Co., New York City:

“ The Susquehanna Steamship Company, Inc., has today entered into a charter party with A. 0. Andersen & Co., Inc., as agents, on the steamer Lydia, to lift the F ebruary sugar under our contract "with you. Under this contract you will be obligated to pay us the freight on this sugar in accordance with the terms of our contract, and we wish to provide for the payment of the freight money which will be due from the Susquehanna Steamship Company to A. 0. Anderson & Co., Inc., as agents, and we therefore request and direct you to pay to A. 0. Andersen & Co., Inc., as agents, at the rate of $30 per ton on this sugar, in the same manner and at the same time as provided in our contract. The payment made to A. 0. Andersen & Co., Inc., as agents, will be in reduction of your obligation to pay us under our contract with you.

“ Yours truly,

“ Susquehanna Steamship Co., Inc.

“(Sgd.) J. D. Phillips,

“ Vice President and General Manager ”

That a contract had. been made between the said steamship company and the defendants, who are co-partners doing business under the firm name Lamborn & Co., by which the steamship company undertook to provide for the transportation of sugar for Lamborn & Co. from Cuba to Holland, and Lamborn & Co. agreed to pay the steamship company therefor at a rate in excess of $30 per ton on the sugar so transported; that on the said 29th day of December, 1919, a charter party was entered into as stated in the above letter between the plaintiff, as agent for the steamship Lydia, and the said steamship company, whereby the plaintiff chartered the said steamship to the said steamship company for the transportation of a cargo of sugar from Cuba to Holland, said cargo being one which the said steamship company was under obligation to transport for the defendant under its said agreement; that the order above set forth was made by the steamship company and delivered by it to the plaintiff in part consideration of the plaintiff’s chartering the steamship Lydia to the said steamship company as aforesaid; that on or about the 9th day of January, 1920, the plaintiff gave notice to the defendants of the said order by delivering the same to the defendants, and that thereafter the said steamship was tendered to the defendants in Cuba for a cargo in accordance with the agreements aforesaid, and there was provided by the defendants and loaded on board the said steamship a cargo consisting of 4,928 tons of sugar, which was thereupon carried by the said steamship to Holland and delivered in accordance with the bill of lading therefor; that by reason of the premises there became due from the defendants to the said steamship company freight on said cargo of sugar at a rate in excess of $30 per ton, and that thereafter the defendants, without the consent of the plaintiff, and in disregard of the said order, paid to the said steamship company the entire freight on said cargo of sugar, and failed and refused to pay to the plaintiff the amount specified in said order, namely, $30 per ton on 4,928 tons, or $147,-867.45, for which amount judgment is demanded. I am of the opinion that under the decisions the order above quoted constituted an assignment pro trnto of the moneys to become due from the defendants to the steamship company. Brill v. Tuttle, 81 N. Y. 454; Hibbs v. Brown, 190 id. 167; Muller v. Kling, 209 id. 239; Foley v. New York Sav. Bank, 157 App. Div. 868; Hofferberth v. Duckett, 175 id. 480. I cannot accede to the argument made by the learned attorney for the defendants that the letter above quoted constituted a demand on the defendants that they accept a new contractural relation for the carriage of goods with new parties. The allegations of the complaint, construed together, should, I think, be taken to mean that the steamship company’s contract with the plaintiff was one it was permitted to make under its contract with the defendants and that the plaintiff’s transportation of the cargo referred to was a part of the steamship company’s performance of its contract with the defendants or, for aught that appears in the complaint, full performance of such contract, and that everything contained in the letter of December 29th, except the order to pay, is to be treated as merely explanatory. Neither do I think that the complaint fails to allege that the particular fund described in the order became due from the defendants to the steamship company. There is nothing to show that the steamship company’s contract with the defendants called for the transportation of anything but February sugar and nothing to show that the carriage of the cargo by the plaintiff’s vessel was not full performance of such contract. It may be that some of the allegations of the complaint are close to the border line of conclusions, within the meaning of that term in the consideration of pleadings, but when taken in connection with the allegation that the defendants paid to the steamship company the entire freight on the cargo in question, I am of the opinion that it should be held that the complaint sufficiently states a cause of action. It is finally claimed by the defendants that the complaint is insufficient because it fails to allege that the plaintiff has not received payment of the freight moneys from the steamship company. This contention is based upon the theory that the order in question in terms gives notice to the defendants that the assignment from the steamship company to the plaintiff was by way of collateral security and that therefore the defendants’ obligation under it was that of a surety. I cannot assent to this view. The purpose of the order was that the defendants should pay the freight moneys to the plaintiff in the first place and thus relieve the steamship company of the necessity of making payment of the same itself to the plaintiff. Under the terms of the order the defendants were obliged to pay the moneys in question directly to the plaintiff as soon as they became due. It does not, as claimed by the defendants, provide security for such payment if the steamship company should fail to make it. There is nothing contained in the order which warrants the inference that the obligation of the defendants to pay the freight moneys was conditioned upon the steamship company’s failure to pay the same. On the contrary, the order, as I construe it, created a direct and primary obligation on the part of the defendants to pay the freight on the cargo of sugar to the plaintiff (Hirshfield v. Ludwig, 69 Hun, 554, 557; Gallagher v. Nichols, 60 N. Y. 438, 444, 445), and consequently, if the defendants, under the circumstances alleged, voluntarily paid over the money to the steamship company, they did so in their own wrong. Brill v. Tuttle, supra, 460. The motion should therefore be granted, with $10 costs, but with leave to the defendants to withdraw their demurrer and to answer within twenty days after service of a copy of the order to be entered hereon, with notice of entry thereof, and upon payment of such costs.

- | Ordered accordingly.