Campbell v. Ehlen

Bryan, J., delivered the opinion of the Court. There was some conflict of evidence in this case. According to the testimony for the plaintiff below (who is now appellee,) he through his agents, Alden and Nevin, contracted to sell and deliver to the defendant (who is now appellant) five thousand tons of coal to be delivered free on board the defendant’s vessel at Baltimore. The contract was as follows: “Order No. 24, Boston, June 24th, 1890.

Ehlen Bros., sold to Messrs. C. A. Campbell & Co., Chelsea, Mass. To be shipped, as ordered. 22 feet Water No. — , Beam No. — . Bridges not insure. 5,000 tons of Big Vein Cumberland coal at. ⁹⁹ §2.15 f. o. b.; they will send their own vessel.

We think they will take their first cargo soon; will advise us in a day or two. Tours truly, Alden & Nevin. ” During the summer and early fall of 1890, twenty-five hundred tons of the coal were delivered by the plaintiff and duly paid for by the defendant. In the month of November, 1890, in consequence of negotiations between Alden and Nevin, the plaintiff’s agents and the defendant, it was agreed that the plaintiff should load the schooner “'Charles A. Campbell” with the remainder of the coal, and the schooner came to Baltimore; the plaintiff did not make a contract to load the vessel at any specified time, but only to complete the loading’ as soon as possible. On the sixth day of December, the defendant came to Baltimore and had an interview with the plaintiff, and having heard his explanations about the great difficulty of getting transportation for coal from the mines, and the inevitable delay in loading, and the impossibility for the plaintiff to fix any time for doing so, he expressed himself as perfectly satisfied.

On the seventh day of January, 1891, the full cargo was placed on board the schooner Charles A. Campbell, amounting to twenty-five hundred and sixteen tons, and the captain signed bills of lading without protest, and without making any claim for damages on account of delay or for demurrage; and he did not at any time during the delivery of the coal in Baltimore claim that the plaintiff had agreed to load the vessel within a stipulated time. The foregoing statement is the substance of the evidence in behalf of the plaintiff on the subject of the contract and its fulfilment. On the part of the defendant the evidence contradicted the plaintiff’s case in very important particulars. It tended to show that when the schooner arrived at the port of Baltimore in November, 1890, she was light and ready for loading, and that her master (Hall,) on the ¹⁰⁰ first day of December, reported her arrival to the plaintiff, and gave him notice that the vessel was ready for loading; that before she sailed from Boston the plaintiff agreed with the defendant to load her during the first week of December; that the delay in loading was caused by the fault of the plaintiff; that the master of the schooner gave notice to the defendant of the plaintiff’s action in respect to the delay in loading, and that finally in an interview with the defendant who was part owner of the schooner and was acting in behalf of the other owners, the plaintiff promised and agreed that he would complete the loading on or before the fifteenth of December.

The principal conflict of evidence occurs on the question whether the plaintiff was bound to complete the loading on or before the fifteenth of December. The schooner arrived at the port of Boston on the fourteenth day of January, 1891, and after discharging about nine hundred tons of coal, the master on the next day filed a libel in the Admiralty for demurrage, alleging that the plaintiff in this action had made a verbal contract of affreightment’with the defendant, who was then acting in behalf of the owners of the schooner, and that by the terms of the contract of affreightment the plaintiff was bound to begin loading immediately upon notice of the arrival of the schooner at Baltimore, and to load her at the rate of a hundred and fifty tons of coal per working day until she had a full cargo, and that in case the vessel should be detained longer than was necessary to load her at that rate, he would pay demurrage at the rate of six cents per ton upon the number of tons named in the bill of lading, for each and every day that she should be so detained. Notice of this proceeding was promptly given to Ehlen by Campbell. No person appearing for the defence, the libel was taken pro confesso, and after an ex parte hearing, it was decreed that the portion of the cargo which had not been ¹⁰¹ discharged should be sold by public auction.

It was sold and bought by this defendant. In the libel suit a petition was filed by Morse, who styled himself the managing owner of the schooner, claiming freight alleged to be due by this plaintiff, and a decree was passed that it should be paid out of the proceeds of sale of the cargo. The expenses of sale, costs of suit, and the amounts of the decrees for demurrage and freight exceeded the sum of money for which the cargo was sold. The plaintiff offered two prayers which were granted by the Court.

By them the jury