Ward v. Whitney

Headnote

Where a document attested by a subscribing witness has without objection been . proved by secondary evidence in an examination of a witness conditionally, it is too late upon the trial to object to its being read from the deposition. Where the owner of a ship has by parol agreed to sell an interest in her to his captain, but had never' conveyed the title to him, the captain is not a necessary party in an action commenced by attachment against a charterer for freight carried on the charter party.

The obligor in a bond given pursuant to section 55 of title I, ch. 5 of part 2 of the Revised Statutes, (2 R. S. p. 12,) can not object that it was made by , the defendant in an attachment -with but one surety.

A stipulation in a charter party to pay “freight at $4 per chaldron Pictou mines measure of 30 cwt..” has reference to chaldrons weighing 30 cwt.

Where by the terms of a charter party, the freight is to be paid in an approved acceptance of 30 days from the period of discharging the cargo, and the agents of the freighter decline to give the acceptance, the owner may commenee his action for it without waiting the thirty days.

This action was brought in the Superior court of the city of New York upon a bond given by the defendants to obtain the discharge of an attachment issued by the plaintiff against Thomas Tremlett, a nonresident debtor, upon which the ship James Edward belonging to him had been taken. The bond contained a recital that application had been made by the defendant Whitney, for the discharge of the attachment. The cause was tried in October, 1848, before Mr. Justice Vanderpoel.

To show the debt for which the attachment was issued, the plaintiff introduced the deposition of Joseph Webster, the captain of the ship, taken conditionally. He stated that in August, 1847, he was in London with the vessel, and there executed a charter party with the agent of Triplett. This was shown to and identified by the witness. By its terms he agreed to proceed to Picto.u, Nova Scotia, and take on board a full cargo of coals and carry them to New York, where he was to deliver them to the order of Trip

lett, “ freight payable at four dollars per chaldron, Pictou mines measure of thirty cwt. in approved acceptance of thirty days from the period of discharging the cargo.” The charter party was signed by the agent, and beneath it was an attestation by a subscribing witness. A direction then followed as to the person from whom the coals were to be obtained at Pictou. No objection to the manner of proving the charter party, appeared by the deposition to have been taken. The witness further testified that he proceeded with the ship to Pictou and obtained the coals from the person to whom he was by the direction at the foot of the charter party to apply. It was not weighed or measured, but taken on board as it was brought from the cars. He requested the agent of the mines to have it weighed, but he answered that they had no means of weighing it. The men employed by the agent kept a tally of the number of car loads, but the witness did not know how many there were. Some of the loads were piled as high as the coals could be laid on the cars, and some would be only level with the top of the car: they came in this way haphazard, there being no particular number of car loads that were heaped up. After the cargo was on board a bill of lading was prepared for the witness to sign. This stated the shipment of “ four hundred chaldrons of Albion coals of the Albion mines measure, to be delivered at the port of New York, to Tremlett or his assigns, they paying freight as per charter party, four dollars per chaldron, Pictou mines measure of thirty cwt. with average accustomed.” The witness refused to sign this until it was altered by a memorandum as follows: “ Contents unknown—coal not being weighed.” With this addition he signed it. At the time the charter party was entered into, the witness had made a verbal arrangement with the plaintiff to purchase one eighth of the ship, but had never paid any thing upon it, and the bargain was subsequently given up. In order to overcome any objection upon account of his interest, a release from him to the plaintiff of all his interest in the charter party, and the

claim arising thereon was executed and by stipulation received with the same effect as if made before the deposition was taken.

The plaintiff further gave in evidence that upon weighing the coals at New York, there were 458J chaldrons of thirty cwt. each: that after the delivery of the coals to the agents of Tremlett, a bill was presented to them for the freight, with charges for demurrage and expenses, in accordance with the terms of the charter party, and they refused to give an approved acceptance at thirty days therefor, but offered to pay the amount that would be due, estimating the coals at four hundred chaldrons.

It was shown on the part of the defendants that the cars in which coals are brought from the Pictou mines contain two miner’s chaldrons, and that the coals are never weighed at the mines: that a miner’s chaldron will turn out at New York from one hundred and forty to one hundred and forty-five chaldrons, and that the agents of Tremlett in New York had no authority to give acceptances for him, but that they offered to pay what they deemed due by the charter party upon the cargo of four hundred chaldrons.

The plaintiff’s counsel moved for a nonsuit, on the grounds that: 1. There was no evidence of a demánd of an acceptance in accordance with the terms of the charter-party, and no evidence of any refusal to comply with such terms. The demand was for more than was due, and it was not made of any person authorized to give the acceptance.

2. The bond declared on is void, because it is not executed by Tremlett or his agent, with two sureties.

3. The witness Webster was the owner of one eighth of the vessel, and ought therefore to have been joined as a plaintiff in the attachment, and in this suit.

The court denied the motion, and charged the jury that the plaintiff was entitled to recover in this action four dollars for every thirty hundred'weight of coals delivered from on board the ship James Edward. That there was nothing

in the charter party which made the measuring or weighing at Pictou conclusive upon the parties, and that the witness Webster had but an equitable interest under a contract, and by the rules of pleading should not have been made a coplaintiff.

The defendants’ counsel then requested the justice to charge, that if at the time of the demand of the plaintiff, he was offered on behalf of Tremlett a full settlement on the basis of four dollars for each Pictou chaldron of the cargo of the ship James Edward, and he refused to accept such settlement, this suit could not be sustained. He refused so to charge, and proper exceptions were taken.

The jury found a verdict for the plaintiff for $‘2156"85, upon which a judgment was rendered which was affirmed by the superior court en banc. The defendants appealed therefrom to this court.

insisted that the freight payable by the charter party, was four dollars per chaldron according to the measurement at the Pictou mines:, that Webster, the captain, was as part owner of the ship a necessary party in the proceeding under the attachment and in this action, and that the plaintiff should have been non-suited because he was not joined: that the charter party was not properly given in evidence as there -was no proof by the attesting witness of its execution:» and that the bond was insufficient under the statute as it should have been executed by the debtor or his agent, with sureties, when in fact it was executed simply by two obligors.