Jenkins v. Wheeler

Oliver N. Jenlcins, tbe Plaintiff’s intestate, was employed by one Anthony Pelletier to take charge of the bark Peytona, then lying in the port of New York, on her then contemplated voyage to Australia. The title of the bark then stood in the name of the Defendant as owner, although, in fact, he was not such owner. On the 8th day of February, 1853, the Defendant, in whose name the title to the bark stood, and Jenkins, entered into an agreement substantially as follows: The said Jenkins thereby agreed to and with the Defendant, to take charge of the bark Peytona, then lying in the port of New York, for her then present voyage to Australia, and return to New York, according to instructions given him by Anthony Pelletier ; and Jenkins agreed to use his best efforts for the interests of the said bark and owners.

And the Defendant covenanted and agreed that he would pay to Jenkins, in consideration of said services, the sum of one hundred and fifty dollars for each and every month of said period during said outward and return voyage.

The bark was owned by said Pelletier, and Overman & Gruner;

The instructions of Pelletier to Jenkins, under date of Feb. 7, 1853, are set out in the case, and show fully that Pelletier assumed the sole control and direction of the voyage. The Defendant offered to prove on the trial that this agreement between himself and J enkins was signed by him solely for and on behalf of said Pelletier, Overman & Gruner; that they were the only persons beneficially interested in said bark Peytona; that the Defendant had no beneficial interest in her or her cargo or voyage ; that he was not interested in or connected with any other ships or mercantile business; and was connected with said bark Peytona only as holding the naked legal title to her, for and on behalf of said Pelletier, Overman & Gruner; that all these facts were known to said J enkins, and to all parties having dealings with said bark Peytona, or her owners, before said agreement in suit was executed ; and that Jenkins, in making such agreement, gave credit to and relied upon the responsibility of said Pelletier, Overman & Gruner, and not upon that of the Defendant.

To this evidence the Plaintiffs’ counsel objected, and upon such objection the same was excluded. In the further consideration of this case, we shall assume that the matter so offered in evidence, and excluded on the Plaintiffs’ objection, was true, and could have been proven. The bark Peytona sailed on her intended voyage from the port of New York soon after the date of said agreement, and was compelled, in the judgment of the master, to put into the port of Bahia, South America, by reason of shortness of water. After leaving Bahia the vessel put into Cape Town, on the coast of Africa, for water and fresh provisions. After leaving Cape Town, the bark encountered heavy winds and lost her rudder ; and the vessel leaked, and the captain then put into Port Louis, on the island of Mauritius, where he arrived on the 16th of August, 1853. On the 8th of September following, the captain abandoned the vessel to the underwriters, and she was advertised for sale; and the further voyage was then abandoned. The Judge, at the trial, instructed the jury that the Plaintiffs (in whose name

The Defendant claimed that the voyage was broken up by reason of the negligence, unskilfulness, neglect, fraud, and fault of the Captain in this: •

First. That the vessel could have been repaired and proceeded on her voyage, and therefore the Captain was not justified in abandoning her, and causing her to be advertised for sale.

Second. That the Captain, without good cause, deviated twice from the course of the voyage, and put into Bahia and Cape Town, and remained there longer than was necessary, and thereby caused the vessel to encounter the storm which was the immediate cause of the necessity of putting into Mauritius.

The Judge charged that, if the jury should find both that the Captain could have procured sufficient means to repair the vessel, and that under all the circumstances it was best for the interests of the owners that she should be repaired at Mauritius, then their verdict was to be for the Defendant. If, however, they should find either that the Captain could not procure sufficient means to repair the vessel, or if he could that it was not for the best interests of the owners to have the repairs made at Mauritius, then the Captain was justified in abandoning the vessel and advertising her for sale; and the Judge further charged, that if, after taking all the matter referred to into consideration, with the other facts proved in the case, the jury should come to the conclusion that means could have been raised for making .these repairs, and that it was

The Defendant excepted to the charge, as to the time for which wages were recoverable, on the ground that, if recoverable at all, they could not be recovered for a longer period than from the inception of the contract sued on to the breaking up of the voyage.

The Defendant also excepted to that portion of the charge which stated that the Plaintiff was entitled to recover unless the voyage was broken up through the unskilfnlness, negligence, fault or fraud of Captain Jenkins. Also, to that portion of the charge in reference to the first and second claims set up by the Defendant; and also as to what the Judge charged the jury, in reference to the damage sustained by the owners, arising from the

Judgment was entered at the Special Term of the New York Supreme Court, in accordance with the verdict, for the Plaintiffs, and on appeal to the Glen eral Term of that Court, the judgment, by consent of the Plaintiffs, was modified by deducting therefrom the amount allowed the Plaintiffs for the wages of the intestate from May 27, 1854, to October 11,1854, amounting to $675, with interest from February 14, 1855, amounting, in all, to the sum of $1,195.53; and the General Term affirmed the judgment with such deductions.

The verdict of the jury must be taken and assumed to have established the following facts in this action :

1. That the voyage in question was not broken up through the unskilfulness, negligence, fault or fraud of Captain Jenkins.

2. That the vessel could not have been repaired at Mauritius, and have proceeded from thence on her contemplated voyage to Australia; and that the Captain was justified in abandoning the vessel, and such voyage, at Mauritius, and causing the vessel to be there advertised for sale.

3. That the Captain did not deviate twice from the course of his voyage, by putting into Bahia and Cape Town, without good cause; and that he did not remain in those places longer than was necessary, and that such deviations and delays were without fault on his part.

4. That the owners of said bark did not sustain any damage by reason of the fault, negligence, or unskilfulness of the Captain in the line of his duty.

These facts being established, if no error was committed upon the trial, it would follow, as a necessary consequence, that the

We are to bear in mind, however, in looking into the rights of the Captain, that they arise and grow out of the contract made with the Defendant, so far as any liability .on his part exists.

The law of England, and that of this country, holds that the master has no lien on the ship for his wages, and it is now definitely and clearly settled in England, that the master contracts upon .the credit of the owner, and not of the ship, and that he has no lien on the ship, freight, or cargo for any debt of his own, as for wages, or stores purchased, or repairs done at his expense, either at home or on the voyage. The reason for this laid down in the books of the common law is, that although mariners are supposed to contract on the credit of their ships, the master’s contract is altogether of a personal nature, on the credit of the owner (12 Mod. R. 405; Read v. Chapman, 2 Strange, 937; Ragg v. King, id. 858; Clay v. Sudgrave, 1 Salk, 33; S. C. 1 Ld. Ray. 576, and Carth. 518; Curtis’ Rights, &c., p. 252; 3 Kent’s Com., p. 166).

Chancellor Kent thought this doctrine in the English law remained yet to be definitely settled and declared in this country, and refers to various cases in which the English authorities have either been overruled, questioned, or qualified by the Judges in the United States. But he says that, by the case of Van Bokkelin v. Ingersoll ( 5 Wend. 315 ), as settled in the Court of Errors in New York, the English law was recognized, that the master had no lien on the freight, nor on the vessel, for his wages. If it were necessary to the decision of this case, we should feel bound to adhere to the doctrine thus promulgated by the highest Court of this State as the law of this State, and which has been a recognized rule of law therein for nearly forty years. The master’s contract is therefore to be governed by and construed by the same rules of law as are applicable to other contracts. The doctrine in relation to mariners’ contracts, and to those of seamen for wages, and the maxim that “ freight is the mother of

Applying the doctrine of this case to the one now under examination, it follows that, independent of the contract given in evidence, there would be no liability whatever on the part of the Defendant for any wages due the Captain, or for sendees rendered by him for or on account of this vessel or her owners, or for their benefit. No implied promise, therefore, could be raised that the Defendant was to pay for the same, as Captain Jenkins well knew the special relations this Defendant held tó said vessel, and to her

It is needless to go outside of the discussion had upon this question in this State. The case of McMillan v. Vanderlip ( 12 John. 165 ) contains an elaborate review of the English cases, and enunciated the settled rule of law with precision and entire accuracy. In that case the agreement was that the Defendants were to

It was also held, that the written contract between the parties was an entire contract of hiring for eight months, at a stipulated price. That M. was to work eight months for E., for which E. was to pay him 104 dollars, or 13 dollars a month — not 13 dollars at the end of every month, but the entire sum of 104 dollars to be paid was to be equal to that rate of compensation. So in the case at bar, it is clear that the monthly rate fixed was not to be paid at the expiration of every month; but when the round voyage

The same doctrine was reiterated in Cunningham v. Jones ( 20 N. Y. 486 ). In that case it was held that the contract (an agreement to erect a brewery upon the Defendant’s land, without any stipulation or agreement as to the time and manner of payment, except that the labor was to be performed by day’s work) was an entire one, and indivisible, and that the contractor was not entitled to recover without a full performance on his part. It matters not that no price was fixed upon as a compensation. The Defendant had a right to insist, before he was called upon to pay, that the contract should be first performed. The same doctrine

In Oakley v. Morton (11. N. Y. R. 25), this Court decided that a condition precedent must be strictly performed to entitle a party to recover. Judge Allen, in his opinion, said: “ Whenever a party by his own contract creates a duty or charge upon himself he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, because-he might have provided against it by his contract ” (citing numerous authorities). Judge Johnson, in the same case, said: “ The performance must be exact, not cy pres.”

The voyage which Plaintiffs’ intestate agreed to perform was not made. It is clear upon all the authorities that they cannot recover, unless some valid and legal excuse is shown for the nonperformance by him. The Plaintiffs claim that the interruption of the voyage, and the sale of the vessel at Mauritius, furnish such an excuse. To this the Defendant is at liberty to say, “ Non in hoc fcedere veni.” Inevitable accident on the p>art of a third party is not an adequate excuse. The fault of the Defendant alone is available for such a purpose. As was correctly observed in the case last cited, such “ accident by inevitable necessity is not available, because he might have provided against it by his contract.”

This Court decided, in Harmony v. Bingham ( 12 N. Y. 99 ), that when a party unconditionally, by express contract, agrees to do an act, performance is not excused by inevitable accident or other unforeseen contingency not within .his control; and in the opinion of the Court, by Judge Edwards, it is said “that this rule has been uniformly followed, and that, too, even in cases in which its application has been considered by the Court as attended with great hardship. The only exception which has ever been

Judge Buggies said: “ It is a well-settled rule of law, that where a party, by his own contract, absolutely engages to do an act, it is deemed to be his own fault and folly that he did not thereby expressly provide against contingencies, and exempt himself from responsibility in certain events. And in such a case, therefore — that is, in the instance of an absolute and general contract — the performance is not excused by air inevitable accident, or other contingency, although not foreseen by or within the control of the party.” The same doctrine was enun ciated by this Court in Tompkins v. Dudley (25. N. Y. 272). There the Plaintiffs, as trustees of a school district, sued to recover moneys advanced by them toward the erection of a school-house, paid on account to one Chambers, who had contracted with Plaintiffs to erect and build it for a certain sum, and the Defendant had guaranteed the faithful performance of the coirtraet by Chambers. Before the building was entirely completed, it was destroyed by fire. This Court held that the Plaintiffs were entitled to recover, and that the justification for non-performance, the destruction of the building by fire and inevitable accident, without any fault on the part of the contractor, was no legal justification for the non-perform-aneé of tlie contract. The case of Adams v. Nichols ( 19 Pick. 275 ) was referred to. In that case Morton, J., in delivering the opinion of the Court, said: “ The Defendants do not pretend that they have executed their contract to build a house for the Plaintiff", but contend that the facts disclosed furnish a legal excuse for not doing it. . . . In these and similar cases, which seem hard and oppressive, the law does no more than enforce the exact contract entered into. If there was any hardship, it arises from the indiscretion or want of foresight of the suffering party. It is not the province of the law to release persons from the improvidence of their own acts.” In harmony with these principles is the case of School Dist. No. 1 v. Dauchy ( 25 Conn. 530 ), and also an instructive case of School Trustees of Trenton v. Bennett (3 Dutcher, N.

“No rule of law is more firmly established by a long train of decisions than this, that where a party, by Ms own contract, creates a duty or charge upon himself, he is bound to make it good if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract.” In reference to the hardship of such a rule, the Court very justly says: “ No matter how harsh and apparently unjust in its operation the rule may occasionally be, it cannot be denied that it has its foundation in good sense and inflexible honesty. He that agrees to do an act should do it, unless absolutely impossible. He should provide against contingencies in his contract. Where one of two innocent persons must sustain a loss, the law casts it upon him who has agreed to sustain it, or rather the law leaves it where the agreement of the parties has put it. The law will not insert, for the benefit of one of the parties, by construction, an exception which the parties have not, either by design or neglect, inserted in their engagement.” To the same purport is the law of Catlin v. Tobias ( 26 N. Y. 217 ).

It logically follows from these authorities that the contract of the Plaintiffs’ intestate with the Defendant was for the round voyage and an entirety, and that the compensation therein specified was to be made upon its performance; that such performance was a condition precedent, and no action could be maintained until such performance had taken place, unless the party upon whom such performance rested established a valid and legal excuse for such omission or non-performance; that none such has been shown in this case, and, as a consequence, neither the Plaintiffs nor their intestate are entitled to claim such compensation. If these views are concurred in, it follows that the judgment appealed from must be reversed, and a new trial ordered, costs to abide the event.

The majority of the Judges are, however, of the opinion that the points discussed in the preceding opinion were not raised upon the trial of this action, and therefore ai’e not now available to the Defendant. But they are of the opinion that the exception to the charge, as to the time for which wages were recoverable, if

The judgment appealed from is therefore affirmed, without costs of this appeal, if Plaintiffs elect and consent to deduct all allowances for wages after September 8,1853, and interest thereon included in the judgment. If they do not so elect and consent within twenty days after notice of this judgment, the said judgment is reversed and a new trial ordered, costs to abide the event.

'Weight, Poetee, Fullbetoh, and Paeeee, JJ., concur in reversing, unless there is a reduction of damages to compensation while actually navigating vessel.

Affirmed, conditionally.

HuNT, J., and Geoyee, J., dissent.

JOEL TIFFANY, State Peporter.