Furness, Withy & Co. v. Randall

Stockbridge, J., delivered the opinion of the Court. The plaintiffs in this case were and are grain commission merchants in the City of Baltimore. The defendant is a corporation owning and operating a “Line” of steamers of irregular sailing between Baltimore and Leith, Scotland, the vessels being what are frequently called “Tramp” steamers, and actually performing their voyages only when there was a ship load of freight to be- carried. On the 26th September, 1911, an agreement was entered into in the following language : “Dkesee, Rauschenbeeg & Co. Agents .Furness Lino.

Freight Contract. Contract Ho. 66. Baltimore, Sept. 26, 1911. Engaged, from Gill & Fisher.

For shipment per S. S. Furness Line. Intended to load December, for Leith, Scot. To be ready when called for on or after Dec. 1st. Shippers option of cancelling engagement if vessel not ready to receive on or before Dec. 30th.

Description of engagement 2000 quarters grain. Rate of freight 2/1 )/> per quarter. Subject to conditions of bills of lading. If different kinds of grain be shipped, no parcel to be under 2000 qrs. without agent’s approval.

General cargo insurance. To be forwarded on last steamer in December. (Signed) Dkesee, .Rauschenbekg & Cov Agents. O. K G. & F.” ¹⁰⁴ No vessel appearing the last of December to fulfill the engagement above set out, there was a violation of contract and this suit was brought to recover damages for such violation.

The defendant appeared to the action, and filed three pleas, of which the third is in the following terms: “And for a third plea that the Steamship Amana belonging to the defendant sailed from Leith, Scotland, on December 1st, 1911, bound for the Port of Baltimore, Md., where she was due to arrive on or about December 20„1911; that at the time of sailing the said steamship was tight, staunch and fully manned and equipped for said voyage; that on December 2, 1911, the defendant nominated said Steamship Amana, which was expected to sail from Baltimore for Leith on her return voyage on December 27, 1911, and which was the last ship of the defendant sailing during that month, to fill its contract to carry for the plaintiffs 2000 quarters of grain from Baltimore to Leith during the month of December, 1911, on the last ship of the defendant sailing during that month; and the nomination of said steamship for said contract was accepted by the plaintiffs; that the said Steamship Amana has never been heard from since December 1, 1911, the date of her sailing from Leith for Baltimore, hut became a total loss upon the high seas by reason of perils of the sea, and without fault or neglect on the part of the defendant, and that the loss of the said steamship rendered it impossible for the defendant to perform its said contract with the plaintiffs.” A demurrer to the third plea was interposed and sustained, and thereupon the defendant filed a fourth plea, which set out substantially the same defense as that attempted to be set up in the third plea, but set it out in somewhat fuller detail, alleging in addition that the agreement of September 26th was not the entire agreement between the parties. A demurrer to this plea was also sustained, and thereupon the ¹⁰⁵ •case went to trial. There are four bills of exception relating to testimony and to a tender of evidence, and a fifth bill taken to the action of the Court upon the prayers. The rulings of the Court upon the testimony and upon the prayers followed for the most part as a necessary and natural sequence to the ruling upon the demurrers to the third and fourth pleas, and if those rulings were correct the several bills of -exceptions are not well founded.

The exceptions and the •demurrers may, therefore, properly be considered together. It is pertinent to state and to keep in mind one or two additional facts in order to accurately apply the law governing the case here presented. The contract of September 26th having been made, nothing further appears to have been done until the 2nd day of December, 1911, when a notice, spoken of by the witnesses as a “Nomination,” was sent by the agent of the defendant to the plaintiffs. That notice was in the following terms: “Baltimore, Dec. 2, 1911.

Mess. Gill & Fishes : City. Dear Sib: We beg to name Steamer “Amana,” expected to sail for Leith Dec. 27th for 2000 quarters grain. Engagement of Sept. 26, for 2000 quarters.

Respectfully, Dbesel, Rauschenberg & Co., Agents. Contract No. 66. Per A. F. Sidbbotham.” The exclusion of this notice when offered in evidence constitutes one of the bills of exceptions. Subject to all legal •exceptions as to admissibility, it was admitted that the steamship Amana of the Furness Line sailed from Leith, Scotland, on December 1st, 1911, and that she was expected by the defendant to arrive at Baltimore in time to sail from Baltimore on December 27th, 1911, for Leith, and was due so to arrive, and that the vessel has not been heard of since December 1st, 1911.

The theory of the plaintiffs is that the agreement of September 26th was an absolute agreement for ¹⁰⁶ the transportation of 2000 quarters of grain, and that being an absolute agreement, .plain in its language, no evidence is admissible which might tend to vary the legal effect of it or even to explain any of its terms. Reliance for this position is placed mainly upon the ease of the Baltimore Steam Packet Co. v. Patterson, 101 Fed. 296 , and 106 Fed. 736 . In this case there was a contract not very dissimilar in form from the contract of September 26th, but the only evidence -offered in that case in addition to the contract itself was evidence to the effect that the shipper failed at the specified time to produce for shipment the 1000 bales of cotton, and recovery in the form of damages was allowed at the instance of the-owners of a ship belonging to the Johnstone Line and ready to sail at the time specified. In this case if there was nothing before the Court except the contract already quoted, and evidence to show that no- steamer >of the Furness Line had appeared to fulfill and carry out that contract, then the analogy would be complete.

This leads to the consideration of the correctness of the rulings by which the notice of nomination of December 2nd was excluded from evidence. It is-elementary law that where a contract is in writings parol evidence is not admissible to add to, detract from or