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tage of what had been done in their behalf, they could not afterwards refuse to be bound thereby—a doctrine which is abundantly sustained by the authorities. Wheeler & Wilson Mfg. Co. v. Aughey, 144 Pa. 398, 22 Atl. 667, 27 Am. St. Rep. 638; Perry v. Simpson Waterproof Mfg. Co., 37 Conn. 520; Clement Bane & Co. v. Ciothing Co., 110 Mich. 458, 68 N. W. 224. As said by Sharswood, J., in Mundorff v. Wickersham, 63 Pa. 87, 3 Am. Rep. 531:
“Thus, where a party adopts a contract which was entered into without authority, he must adopt it altogether. He cannot ratify the part which is beneficial to himself, and reject the remainder; he must take the benefit to be derived from the transaction cum onere."
Or, as declared in Scott v. Middletown Railroad, 86 N. Y. 200: “Where property bought by the president of a railroad without authority was appropriated and used for corporate purposes, it amounted to an adoption and ratification; the directors so using the material being bound to inquire and presumed to know whether it was paid for or not. It was not essential that they should have actual knowledge of the terms of the contract of purchase; that, for instance, it was made upon the credit of the corporation."
While, then, in the case in hand, Dr. Chambers may have had no authority to bind the company by a written agreement with the plaintiff, as he undertook to do, yet when the board of directors accepted the benefit of the plaintiff's services, which were so secured, as they did when they adopted the sale which he had negotiated with Whitaker, they took upon themselves the obligation to compensate him according to the terms of the agreement under which he acted, whether they knew of its existence or not. It is not as though he was acting for the purchaser in the transaction, nor as though he were a mere volunteer, and it is idle to suggest that it was supposed Dr. Chambers' stock was being sold. He acted for the company, and the directors knew it, and the shares which they agreed to sell were those of the company, as the resolution accepting the application conclusively proves. It was therefore the duty of the directors to inquire and know upon what terms he was acting, and to give timely notice if they did not propose to be bound thereby. They could not play fast and loose with the plaintiff, appropriating his services, and refusing the compensation stipulated for by which those services were obtained.
It is claimed, however, by the defendants that they got nothing out of the Whitaker sale, and that it was subsequently repudiated and annulled. But it is not true that they get no benefit from it, and it is not material that it was not carried out to the full extent that it had been made. Whether it was or not, the plaintiff's services were complete when he secured a responsible purchaser upon terms which were agreeable to the company; and, having once ratified the agreement with him by accepting the benefit of what he had done, they could not throw off the obligation, whether they went on with the sale which he had negotiated or not. The fact is, however, that by the resolution which was finally adopted, however it may be disguised, and whatever may seem to be its terms, advantage was taken of both the Dietrich and the Whitaker sales, thus unquestionably binding the company, upon the principle already alluded to, even if not previously bound. The arrangement speciously entered into with Dr. Chambers, by which he apparently undertook the sale of 14,000 shares of treasury stock, was a mere form. He never attempted any such sale, and it was not expected that he would. This was the exact amount of the combined Dietrich and Whitaker sales, as finally consummated, there being 6663/3 shares of the one, and 13,333/3 of the other, and all he did was to turn over the money which had been obtained from them, which in fact already belonged to the company, but which he had kept back; being reimbursed with treasury stock for that which he had taken from his own individual holdings in order to consummate these sales. That at this time the directors knew of the agreement with the plaintiff, which had been entered into by Dr. Chambers, there can be no question; direct reference being made to it in the resolution. In thus taking advantage, mediately or immediately, of the plaintiff's labors, they acted with knowledge, if that be necessary where there has been an acceptance of benefit; so that, even upon that basis, complete liability was made out. There was abundant evidence, therefore, as this review of it will show, to sustain the verdict, and the rule for judgment notwithstanding it must be discharged.
In one respect, however, the verdict is not to my satisfaction. It allows the plaintiff commissions, as though the sale to Whitaker was carried through for the whole 25,000 shares. No doubt, in a measure, these commissions were earned when Mr. Whitaker was secured as a purchaser for that amount upon terms which were acceptable to the company. But difficulty was experienced in enforcing the sale, as we have seen, to which the plaintiff himself contributed when he delivered the stock without getting the down payment which was to have been made. At all events, in the negotiations which followed looking to a settlement, the plaintiff directly participated, and while he now says that he did not consent to the compromise by which the sale was reduced to 13,33333 shares, he made no protest at the time when he was called upon to speak, which is much more significant. It is true that he telephoned to Dr. Scott to see whether Dr. Chambers had authority to settle for less than the whole, which may seem to lend some countenance to his present contention, but he made no objections in the end, and his only complaint in the transactions which immediately followed was that Dr. Chambers did not turn over to the company the draft which Whitaker had given, so that he could get his commissions out of it. Actions speak louder than words, and I am therefore constrained to hold that the evidence of his assent to the settlement with Whitaker is too positive and convincing to be disregarded, and that the jury ought not, in the face of it, to have allowed him commissions to the extent they did.
The rule for judgment in favor of the defendants non obstante veredicto is disciiarged. The rule for a new
The rule for a new trial will also be discharged, upon condition that the plaintiff, within 20 days by paper filed agrees to remit from the verdict all over and above the sum of $1,710.31; or otherwise will be made absolute, and a new trial awarded.
COOK v. SOUTHEASTERN LIME & CEMENT CO.
(District Court, D. South Carolina. June 14, 1906.) SHIPPING—DAMAGE TO CARGO-DANGERS OF THE SEA.
Where it is shown that a wooden vessel was seaworthy at the inception of her voyage, that the cargo was properly stowed and protected, that she was properly provided with pumps and the same were properly worked, that her hatches were properly secured, and that she encountered on her voyage heavy seas of unusual violence adequate to strain her seams and cause her to take in an unusual quantity of water, damage to her cargo therefrom, which it is not shown could have been avoided by the exercise of ordinary skill and care, is within the exception of “dangers of the sea” in the bill of lading, for which she is not liable.
[Ed. Note.--Losses by perils of the sea, see note to The Dunbritton, 19 C. C. A. 465; Southerland-Innes Co. v. Thynas, 64 C. C. A. 118.] In Admiralty. Nathans & Sinkler, for libelants. Mordecai & Gadsden and Rutledge & Hagood, for respondent.
BRAWLEY, District Judge. The libel is for the balance due as freight on a cargo of cement, and the answer admits that the amount of freight money is correctly set forth, but claims that there should be deducted therefrom an amount covering the damage to the cargo and the expense of rehandling it, which would leave nothing due, and alleges :
“That the said schooner, its master and owners, were guilty of negligence in that they left the port of New York with her bottom badly calked and in an unseaworthy condition, and without having her decks properly protected and calked, in consequence of which the cement in wood in the lower part of the hold was damaged, as well as the cement in sacks above."
The schooner sailed from New York November 30, 1905, with a cargo of 1,000 barrels and 24,000 sacks of cement, arriving in Charleston December 6th. When the cargo was unloaded, it was found that 606 barrels and 1,455 sacks had been damaged by water, requiring rehandling and sifting, and the net loss proved is 116 barrels and 319 sacks.
As it is the primary obligation of the carrier to carry with reasonable care, such an unusual damage as is proved in this case raises a presumption of fault and puts upon the ship the burden of proving that the loss falls within some of the exceptions of the bill of lading. The only exception in the body of the bill of lading is the “dangers of the sea. Further exception is stamped on it by a rubber stamp as follows, "Vessels not accountable for leakage, breakage or calking, and, as the libelants claim that the damage was due to the “dangers of the sea," it is for them to show a sea peril adequate to cause such loss in a seaworthy ship. The testimony shows that the "Mary B. Baird” was a schooner about 15 years old; that, during the fortnight preceding the taking on of this cargo, she was in the dry dock in New York for recalking and repairs, and was there examined by an inspector of the Atlantic Insurance Company, who made a careful inspection in behalf of that company, which insured the cargo. This
inspector testifies that the ship was in good seaworthy condition. One of the port wardens of Charleston, who examined the vessel on her arrival in Charleston, testifies that the hatches were well covered, tarpaulin well secured and battened, and seams well calked and cemented; that the cargo was particularly well stowed and dunnaged. The barrels were laid in a single tier upon dunnage 10 or 12 inches in depth, and the sacks were in layers on top of the barrels. Some of the damage was undoubtedly caused by water leaking through the forward hatch, but there was other damage not so caused. The port warden testified to seeing evidences of the lower part of the barrels having been wet. The chief witness for respondent testifies that some of the barrels were wet both at top and bottom, and bore signs of having lain in water; that the barrels were lined with stiff paper; and that the damage could not have been caused merely by water dashing against the outside of the barrels. It is difficult to understand how so much damage could have been caused by the ordinary leakage to be expected in rough weather, and from the blowing of the water in the rolling of a ship, but what has been called “the perversity of inanimate things” often baffles explanation.
There is no testimony which contradicts or impeaches that of the inspector who examined the ship in New York, and I am bound therefore to hold that the ship was seaworthy when she sailed. The testimony of the port warden that the hatches were well secured and battened, and seams well calked and cemented on her arrival in this port, is not contradicted, and no fault is alleged or proved as to the stowage of the cargo, which he says was rather better than the average.
The testimony also shows that the ship was well provided with pumps, and that the ship was regularly pumped. The master, the mate, and a seaman were examined for the libelants. They testify that they encountered a strong gale from the northwest when they came out of New York, but after that there was no storm, but all of them say that they had very rough weather all the way down, heavy seas washing across the deck all the time, and the vessel laboring heavily. The mate and seaman both testify that it was the roughest passage they had ever had in southern waters. The question for decision therefore is whether the rough weather described was one of the ordinary incidents of a sea voyage, or whether it is to be considered one of the “dangers of the sea,' within the exception of the bill of lading: “Perils of the sea” are the exceptions in almost all marine undertakings, and the phrase has been defined in innumerable cases. Sometimes it is construed as equivalent to an act of God, but it has grown to have a wider signification, and the expression is generally construed to denote those accidents at sea peculiar to navigation arising from irresistible forces or overwhelming power which do not happen by the intervention of man, and cannot be guarded against by the ordinary exertions of human skill and prudence. Any loss which might have been avoided by the exercise of reasonable skill or diligence, at the time when it occurred, is not deemed such a loss by the perils of the sea as will exempt the carrier from liability; but a loss from the effect of storms and tempests and straining the ship or causing her to leak, whereby damage is done to the goods, may be well attributed to the perils of the sea, although in one sense they may be ordinary accidents. It is well known, and has been proved in this case, that all wooden vessels will leak a little. That does not render them unseaworthy, and wherever it is proved, as it has been here, that a vessel was seaworthy at the inception of her voyage, that her hatches were well secured, that her cargo was well stowed, that her pumps were efficient and properly worked, that she encountered heavy seas which washed across her deck, that she labored heavily, that the rolling caused by such heavy seas was calculated to strain her seams and cause her to take in water, and that such rolling prevented the pumps from discharging the water, I must conclude, upon the authority of the decided cases, that the damage must be attributed to “dangers of the sea,” for which the ship was not liable under the exception of the bill of lading.
In The Warren Adams, 74 Fed. 413, 20 C. C. A. 486, the court says:
"Where a vessel, soon after leaving a port, becomes leaky without stress of weather or other adequate cause of injury, the presumption is that she was unsound before setting sail. The law will intend a want of serworthiness, because no visible or rational cause other than a latent or inherent defect in the vessel can be assigned for the result. But where it satisfactorily appears that the vessel encountered marine perils, which might well disable a stanch and well-manned ship, no such presumption can be invoked."
In The Ontario (D. C.) 106 Fed. 329, Judge Brown, a very able and experienced admiralty judge, reviewing many of the cases, says:
“Leaks arising in the course of heavy weather to a ship proved by abundant testimony to have been carefully observed and tested in the particulars complained of, and found in all respects reasonably fit for the voyage, are held to be properly attributable to the excepted perils or 'dangers of the sea,' and not to unseaworthiness."
The rolling of the ship, in what all the witnesses testify to have been uncommonly rough and heavy seas, with the attendant straining, furnishes a sufficient and reasonable explanation of the leaking. This rolling would prevent the pumps from exhausting all the water, and the damage from the blowing of the sea water from the hold, and from the taking in of water through the hatches, was a damage which could not have been avoided by the use of ordinary care. No human strength could resist, and no human foresight could prevent, the operation of these elements. Absolute impregnability to the assaults of the elements is not the test of seaworthiness. The test is whether she was reasonably fit for the contemplated voyage.
Nor is there any rule which defines with unfailing accuracy the degree of violence of winds or waves which constitute a peril of the sea. Cross-seas of unusual violence are sometimes so held, and there is a case which holds that the blowing of the vessel is a peril of the
It has been held, too, that the mere rolling of a vessel in a cross-sea is not of itself a peril of the sea. It has been also held that the term is not to be restricted to damage inflicted by the extraordinary violence of the winds and waves.