Richard J. Biggs & Co. v. Langhammer

Pearce, J., delivered the opinion of the Court. The plaintiff in this case is a buyer, seller and shipper of grain, trading as Richard J. Biggs & Company, and has been engaged in that business in' the city of Baltimore for thirty years. The defendants, John F. Langhammer and Ernest Langhammer, trading as E. Langhammer & Son, and Robert McClintock, now deceased, were the owners of the schooner Robert McClintock, and this suit was brought against them to recover damages for the breach of an alleged contract to carry for the plaintiff a cargo of corn from Baltimore to Georgetown, South Carolina. After the institution of that suit, Robert McClintock died, and' upon suggestion of his death, his executors, Robert N. McClintock and Walter R. Town ⁹⁸ send, were made parties defendant.

This will be adverted to later on. The declaration alleges that Wathen & Hooper, being ship brokers, and agents for the schooner Robert McClintock and her owners, contracted in behalf of the defendants with the plaintiff to carry on said schooner from Baltimore to Georgetown from 3,000 to 4,000 bushels of corn in consideration of a freight charge of three cents per bushel; said freight to be paid on delivery of the corn at Georgetown; and the schooner, laden with said corn, to sail on or about May 3rd, 1901. The defendants pleaded separately the general issue, and the verdict and judgment being for the defendants, the plaintiff appealed. There are three bills of exception in the record, the first and second being to the admission of certain evidence, and the third to the ruling upon the prayers.

The plaintiff, to sustain the issues on his part, introduced testimony to prove the. facts alleged, in the declaration. He testified himself that in the latter part of April, 1901, he went to the office of Wathen & Hooper, who were ship brokers, and agents for the schooner Robert .McClintock and entered into an agreement with them to carry for him on the said schooner, then in the port of Baltimore, from 3,000 to 4,000 bushels of corn to the port of Georgetown, South Carolina, for three cents per bushel, the schooner to load and sail in a few days, and that the contract was then closed on the terms stated, with said Wathen; that he had an option on a quantity of corn then stored in an elevator in Baltimore, and was ready and able and willing to close said option and to ship.4,000 bushels of com as agreed upon, but that early.in May, 1901, Wathen & Hooper notified him that Captain Lewis, master of the schooner Robert McClintock, had thrown up his charter and had gone to the West Indies for fruit; that he endeavored unsuccessfully to secure another vessel to take this corn; that he ascertained the rate on corn by rail to Georgetown, but found it so high as to be prohibitory; that the market price of com in Baltimore on May 3rd, 1901, was 47% cents per bushel, at which price he ⁹⁹ had secured his option on the 4,000 bushels to be so shipped; that it was his business to keep posted as to the corn market generally, including Georgetown, South Carolina, and that on May 10th, 1901, the market price there was 60^ cents per bushel, and that it varied very little there for ten days preceding; that it cost 21-/2 to 3 cents per bushel to sack and deliver corn on vessel in Baltimore; and that he never did succeed in getting any part of this 4,000 bushels of corn to Georgetown. He further testified that he had chartered a great many vessels in Baltimore, and that the general custom among ship brokers was to close charters without referring them to the master of the vessel for his approval. On cross-examination he said he had not actually sold the 4,000 bushels of corn on which he had an option, but had written his agent at Georgetown, B. A. Munnerlyn, to sell the same on its arrival, at the then market price.

The plaintiff further proved by Munnerlyn, that he had been in the grain commission business at Georgetown for ten years, that corn sold there during May, 1901, as high as 65 cents per bushel, and that he could have sold all the corn •plaintiff could have shipped him between May 5th and 25th, 1901, at 60 cents per bushel. He further proved by Robert D. Wathen, a member of the firm of Wathen & Hooper, that his firm, about the last of April, 1901, entered into an agreement with the plaintiff to carry corn to Georgetown on the schooner McClintock at three cents per bushel, but that he did not remember the quantity specified; that his firm had trouble with Captain Lewis over his failure to take the corn as agreed on, and the vessel was taken out of their hands and handled by another broker until sometime in 1905, when she was again placed in their hands; and that it usually took the McClintock about one week to make the voyage from Baltimore to Georgetown. Mr. Hooper, the other member of the firm of Wathen & Hooper, testified that there were negotiotions between his firm and plaintiff for carrying corn to Georgetown by the McClintock, and that plaintiff may have secured the vessel, but he ¹⁰⁰ could not be positive, and does not remember that any definite quantity of corn was specified. He also said the usual custom of brokers is to refer the charter to the captains before closing finally. ^ Plaintiff further proved by Luther H. Gwaltney that he is the manager of the American Lumber Company and has been in the lumber business in Baltimore for over twenty years, and always understood that the custom here was for ship brokers to finally close charters without referring them to the captains for ratification.

Captain Lewis for the defendants, testified that he never gave Wathen & Hooper authority to charter for less than 5.000 bushels of corn; that nothing was said about the quantity of corn, “whether there was ten, fifty, one hundred or one thousand bushels, not a word,” though in another part of his testimony he had said that Mr. Hooper told him there were 2.000 bushels belonging to Mr. Biggs to be shipped; that “the brokers as a general thing are agents for the vessels, but before they close anything they generally consult the captain; that is the way I have been running the vessel, they never closed the vessel until they saw me.” The defendant, John H. Langhammer, testified that his firm and Robert McClintock were owners of the schooner McClintock, but that he had nothing to do with her chartering; turned that all over to the captain and his brokers; that his firm received from Mr. Biggs the letter dated May 6th, 1901, offered and admitted in evidence over the objection of the plaintiff; also that he met Mr. Biggs sometime in May, 1901, after the breach of the alleged charter on South street, and that Mr. Biggs told him Wathen & Hooper had agreed to take 2.000 bushels of corn for him by the McClintock to Georgetown, and at the same time said he had better send him $50 and call it square. This statement was objected to by plaintiff, and was admitted over his objection. Plaintiff testified that when Langhammer said he mentioned 2,000 bushels of corn as the quantity to be carried, he was mistaken and confounded sacks with bushels, 2,000 sacks being equal to 4,000 ¹⁰¹ bushels, and that he, plaintiff, never told him the quantity was 2,000 bushels. The letter of May 6th, 1901, above-mentioned, will be transcribed in full and is as follows: “Messrs.E. Langhammer & Son, Managing Owners Sch.

Robert McClintock, 2112 Aliceanna St, City. Dear Sirs: — We like to be neighborly about these matters, and yet, when we make sharp losses through no fault of our own, we cannot help feeling greatly disappointed. The brokers, Messrs. Wathen & Hooper, engaged with us for vessel’s account, the schooner McClintock to load general cargo for Georgetown, commencing on Friday, May 31st.

We obligated ourselves to deliver grain, &c., to Georgetown, and to our own surprise the captain tells us he has chartered elsewhere, and hence cancels his Georgetown charter. If our customers institute proceedings against us, our loss will be several hundred dollars, and may, in fact, be much more than this, but if we can settle the matter amicably and pleasantly with you, we would much prefer doing so to filing claim for damages and charges against the vessel and owners, and therefore, subject to your prompt acceptance and prompt payment, we will accept in lieu of all claims against the vessel as above-mentioned, for the cancelling of its charter, the reduced amount of say, $40 to $50, which offer we make out of respect to you, and in spirit of neighborly courtesy. Please let us hear by two o’clock. As a merchant, you will understand that the position in which we have been placed ruins a man’s business as well as brings pecuniary loss.

Of course if you decline this, and we are forced to consider the matter on a different basis, we would have to ask our full damages. With much respect, Very truly yours, Richard J. Biggs & Co.” At what wharf is McClintock lying? The date May 31st, mentioned in the body of this letter as the time to commence loading, was obviously meant for April 31st, from all the testimony in the case, and needs no further explanation The first exception was to the admission of this letter in ¹⁰² evidence, and the second exception was to the admission of Mr. Langhammer’s testimony as to the plaintiffs telling him he had better pay $50 and call it square. These exceptions present the same question, and will be considered together.

It does not appear from the record upon what principle the Court admitted what the plaintiff claims to have been, and what upon its face appears to be, an offer of compromise, but it may be inferred from the brief of the appellee, that the Court adopted the argument of the appellee that it was not an offer of compromise in good faith, of a claim which the plaintiff believed to .be 'good and valid