REPORTER.
JPan em board,with the object of anticipating and supplantit:lg the master, shall entitle him to, a share of the property
which is subsequently re!Jovered by the unaided efforts of its ·owner. The libel must be dismissEiJd, with costs.
THE
HERO.March 23, 1881.'
(!Ji8trict Court, E. D. Penns1/lfJania.
F., a ship-hroker in N-6w"Ybrk, sent to R, a ship-hroker in Philadelphia, the nam\lc of a vessel open t\> charter in case H. could ohtain any proposals. H. obtl!-ined an ollerfrom P. W. & Bons, which was accepted. The charter was drawn ill P. W. & Sons' office, and marked by the 'employe in charge of their chartering department with his initials, which, accordingtoa system adopted by·P. W. & Sons, and known to H., indicated to P. W. & Sons that the charter was correct. and might he signed without further examination. The charter was forwarded to r., who, after altering it hyan inierlineation, signed U and returned it toB., who left it at the office of P. W. & Sons without mentioning the P. W. & Sons signed it without noticing the alteration, and sent it to H" but shortly afterwards, discovering the ffaud, rescinded the contract. Held, that was not the agent of P. W. & 80ns, hut of the ship, and that P. W. & Sons were not liable oil their charter-party.
AGENT OF ONE PARTY ALONE.
Libel by the master of the bark Hero against Peter Wright &.80ns to J;ecover damages for an,' alleged breach of charterparty. The' testimony disclosed the following facts: Funch, Eq,ye & Co.,' ship-brokers of New York, sent to Hoffman & Meyer, ship-brokers of philadelphia, the name of the bark Hero (then at as ,a vessel open to c.harter in case Hoffman & Meyer couid o,btain proposals. Hoffman & Meyer obtained an .offer frOm Peter Wright & Sons, of Philadelphia, which was aC(lepted. The charter was then drawn by a clerk in the employ of Peter Wright & Sons and subi o ' ·
*Reported by Frank P.:Prichard, Esq., of the Philadclphia bar..
THE HERO.
mitted to W. W. Young, who had charge of their chartering d'e-partmeut. It set f-orth that the bark was "now at Carta..; gena, and to proceed promptly to Philadelphia." Mr. Young examined the charter,and, finding it correct,wrote on it his initials, which, according to the system adopted by Peter Wright & Sons, and known to at least one member of,-thefinn of Hoffman & Meyer, indicated that the charter wasitl accordance with the previous agreement, and might be signed by the finn without further examination.' It was then sent to Hoffman & Meyer,who took it' in person to New York. Funch, Edye & Co. objected to'the words "proceed promptly," and desired to insert the words "to-wit, in about a fortnight." Hoffman & Meyer objected to this, and ,returned to Philadel'phia without thecharter, leaving the matter unsettled;!: The next day Funch, Edye & Co., having communioated with the telegraphed' Roffman & Meyer that the promaster by posed alteration must be made,a:hdrequesting them to see Peter Wright & Sons. Hoffman & Meyer, without complying with this request,telegraphed Funoh, :Edye & Co. that Peter Wright & Sons would, cancel the charter if altered, and to send it unchanged. Notwithstanding this, Funch, Edye & Co. interlined the words "to-wit,-in abaut a fortnight," and forwarded the chatter thus altered to Hoffman & Meyer.One ol the hi.tter firm, with notice of the alteration, took the charter to the offic:e of Peter Wright & Sona, and asked for Mr. Young. The clerk told him that Mr. Young was absent, and asked on what business he t1alled. Upon being told that he had the charter-party of the Hero, ,the clerk asked him to leave it, which he did without mentioning the alteration. The clerk sent it to one of the fiim of Peter Wright & Sons, (Mr. Neall,) who, seeing Mr. Young's'Jinitials, and not notic· ing the alteration, signed 'it, and it was then returned to Hoffman & Meyer, who forwarded it to Funch, Edye:& Co; A few days later, Peter Wright&. Sons, upbnreceiving copies of the charter, discovered the alteration, and notified F.unch Edye & Co. that they would not cal'ryoutthe charter unless the' 'interlined words erased. This Funoh, Edye & Co. ref\lSed to' do., Upoti:the1il;rrival'of 'the hark, Peter Wright &
528
FEDERAL REPORTER.
Sons refusing to load her, she was obliged to obtain a charter at a lower rate, and this libel was filed to recover damages. Edward P. .Pugh and Henry Flander8, for libellant. H. G. Ward and Morton P. Henry, for respondents. BUTLER, D. J. That fraud was practiced ill obtaining the respondents' name to the charter, is clear. Hoffman & Meyer were distinctly informed, while negotiating, that the prompt sailing of the vessel from Cartagena was an essential requisite to the contract. With this in mind, the terms were agreed upon, and reduced to writing, with a clear understanding t4at the paper should be signed as written. Mr. Young, sequently, with the knowledge of Mr. Hoffman, marked the paper as examined and ready for the respondents' signature. Mr. Hoffman testifies that he understood Mr. Young's mark; that it was a sign the paper had been examined, "so that Mr. Neall, or any other member of the firm, could sign, .without reading it through; that the sign was on the paper when it was received, and sent to New York. He further testifies that he and Mr. Meyer objected, earnestly, to the alteration which Funch, Edye & Co. proposed to make; that Funch, Edye & Co. had agreed to sign the charter-party as prepared, without alteration. Hoffman & Meyer telegraphed to Funch, Edye & Co. "Don't alter,-vessel to sail promptly,-as Wrights will surely object to the same." And again, "Wrights insist to have charter to-day. They will cancel charter if you alter it, therefore post at once, unchanged, to avoid trouble." In short, Hoffman & Meyer knew that the paper expressed the definite agreement of the parties, and was to 'Pe signed as written; that Peter Wright & Sons would agree to nothing else, but would withdraw from the transaction if any alteration was made; and that when the paper should be returned, with Mr. Young's sign of examination and approval upon it, they would sign it without reading. After the alteration had been fully resolved upon and made, by Funch, Edye & Co., they requested Hoffman & Meyer to communicate with respondents about it; and were answered by Hoffman & Meyer that Mr. Neall had been seen' and his consent obtained, "after a short struggle," This answer was wholly untrue.
529
Not a word was said to Mr. Neall, or anyone connected with the respondents, on the subject. The paper was taken to tqeir place by Meyer, without any allusion being made to the alteration, and Mr. Neall, seeing the examination mark of Mr. Young, signed it at once, without reading, as Hoffman & Meyer knew he would. Thus it plainly appears that a fraud was practiced in obtaining the respondents' name, and that Hoffman & Meyer practiced it. Upon whom should the consequences fall? If Hoffman & Meyer were the respondents' agents, or were not the lant's, the latter must not suffer for their unfaithfulness. Whom did Hoffman & Meyer represent? Mr. Young, whose duty, as an employe of the respondents, it is to charter vessels, says, "Hoffman & Meyer called and asked fOr a.bid for the · Hero;'" that "Peter Wright & Sons did not ask Hoffman & Meyer to procure them tonnage;" but that the latter asked the former to make a bid for the vessel, and they did so. Mr. Neall says "the vessel was brought to the attention of Peter Wright & Sons by Hoffman & Meyer, who advised us they had the vessel from Funch, Edye & Co." It is thus rendered quite plain, (for there is no contradiction of this testimony,) that the respondents did not employ Hoffman & Meyer, or regard them as interested in their behalf. Mr. Meyer, who was called as a witness by the libellant, (and would seem to be interested in sustaining the charter,) says "Funch, Edye & Co. gave us, Hoffman & Meyer, the ·Hero' to get a charter-party for, in this city. We then applied to Peter Wright & Sons for an offer, and had several interviews with them, the substance of which we communioated. to our principals, Funch, Edye & Co., before an understanding was This corresponds with the testimony of Messrs. Young and Neall, to the extent they go. It reaches further, however, and proves, ·if believed, not only that they were not the agents of Peter Wright & Sons, but were the agents of the ship. The testimony of Meyer is corroborated by the correspondence between Fuuch, Edye & Co. and Hoffman & Meyer,-the letters and telegrams, most, if not all, of which contain evidence that Hoffman & Meyer represented v.6,no.5-34
FEDERAt: REPORTER.
the"ship, uuder Funch, Edye& Co. The latter telegra.phed the former; during the negotiati6n, close "Rossil:tnbark' Hero;' now ,at Cartagena, six shillings and three pence; Cork orders,uBualcharter," and received for reply, "We callnot get that rate, but can get six: shillings, with privilege of continent." August 27th, they wrote to Hoffman & Meyei"We authorize you to close the vessel and expect charter-party in the morning." After receiving the paper and resolving to alter it, they telegraphed, Hoffman & Meyer, "We must insert in 'Hero's' charter, vessel to sail in about fortnight Please see Wrights at once." On forwarding the paper to Hoffman & Meyer, with the alteration, they expressed the 'hope that the latter would be able to obtain Wright's assent to the change. ' Hoffman & Meyer, in communicating the fact that Wright's signature had been obtained, congratulated them: selves and Funch, Edye & Co. on their success in the trans· action, saying, "We have been very lucky to get this vessel through and charter signed." These communications, of themselves, would seem to leave no room for doubt that Hoffman & Meser were acting in behalf of the vessel, alone, and that FUllch, Edye & Co., as well as themselves; so understood. The only evidence to 'the co'ntraryis that found in the testimony of Mr. VolO'kens, of the firm of Funch, Edye & Co., who says they did not' the vessel with Hoffman & Meyer for chatter, but that the latter gentlemen, as agents for Peter Wright & Sons; applied to them to take freight, and that they simply closed with the offers niade by Peter Wright & Sons, through such agents. The 'testimony of this witness (who, no doubt, intends to be entirely'fair), shows, in my judgment, a strong bias in favor of the libellant; He seems to be especially on his guard, throughout, against any formof expression or answer,tend. ing to show concert between hisfitm and Hoffman & Meyer, repeating with unnecessary frequency the idea that Funch, Edye & Co. simply accepted the offer of Hoffman & Meyer as representatives of Peter Wright & Sons. He also seems forgetful 'of Hoffman & Meyer's remonstrances respecting the :alterntion of the palwr, and their representations of oW right's
531
unwillingness 'to allow it; .while the shows; howel1rnest these remonstrances were,!and how fully his firm, was informed on this subject. r wonldnet! say anything disparaging of the witness, personally. ,I, do not doubt his honeBty. That he should desire to sustain the charter is quite mitural. His firni indieated its views on this subject very clearly when notified of the respondents' repudiation of the paper, and again when COnveying 'this notification to the libellant. 'r cannot regard theteBtitnony of this witness as, sufficient to ovetcome, or even shake, the case made out on the other side, opposed as it, i,B, not only by what the other, witnesses, who speak on the ,subject, say, but also by the plain import of the correspondence of his own firm with Hoffman & M:eyer. I regard it as clear that Soffman & Meyer had charge of the interests of the ship, alone, in their transaction with Peter Wright & Sons; and that all parties so understood at the time. They al'e ship-brokers, (as distinguished from freight-brokers,) and belong to a class who, as Mr. testifies, ordinarily represent the ship alone; and look to it for compensation. . Here the compensation of· Hoffman & Meyer comes from the ship; they have no claim, and pretend to none, from the respondents. Their entire to the ship, f9r,which they were bou.nd to obtain the best bargain they comd honestly procure. Unfortunately they overstepped the line, and resorted to fraud. The libellant must therefore bear the cbnsequenc6s;"A coIitract thus obtained, through the agency of those to whom the shIp was entrusted for charter, cannot be enforced. No qliestion can atise respecting the importance of the 'change made in the paper. Filnch, Edye & Co. pronounced it to be of the est importance, and it is shown that Peter Wright & Sons viewed it in the satne light. lEut aside frofuthis consideration, a party niust be aUdwedt6' 'make his oWllcontract,'and cannot held toone obtMned' from him through fraud. Whether it is as favdrabhdo'him, as ouehe might have been willing to make, cannot be inquired into. ' " :rihave not 'overlooked the rule, in considering this case, that [bl:okersmust s0metirn6S; be treated as a;gen:tsof ,both
--
-
532
parties,-invoked by the libellant. The doctrine has no application here. Whether it would avail the libellant if it had, need not be considered. It is much to be regretted that Fuuch, Edye & Co. did not immediately communicate Peter Wright & Sons' repudiation of the paper, to the libellant, on receiving notice of the fact. The ship had not then sailed, and no serious loss would have resulted, had this been done. The position they assumed,that th.eiragency closed with the signing of the charter,rests on a very contracted vIew of their duty,--,.the adoption of which they may yet, possibly, have occasion. to regret. The libel must be dismissed, with costs.
THE (District (Jourt, D. 1. CHARTER-PARTY-'-GOOD
VESTA.
February, 1881.)
SEA RISK.' A vessel was chartered for the. transportation .of. wh,E:at in bunt under a warranty tMt she should be tight, and strong, and, in every way fitted for the Held, under the Circumstances til' this case, that it was essential that the vessel' should be a good sea .' riSk fOlthe' merchandise specified 88 cargo......{Eo.
Shatt'U,ck, Holmes tt Monroe,; for libellant.. L. S. Dabney, for respondent. ·:NELSON, D. J. The libellant, being the charterer of the Russian bark Vesta, then on her way from Friedland to Delaware breakwater, bya charter-party dated October 22,1879, rechartered her to the respondent for a voyage from Boston to either of certain specified ports in the United Kingdom and on the continent of Europe. By the terms of the charter-party the respondent engaged to provide and furnish to the vessel a full and complete cargo of wheat Indian corn. The libellant engaged that the vessel should prepare bag grain at her expense; that she should be for bulk tight, staunch, and strong, and in every way fitted for
B::