Barreda v. Silsbee

THIS case was brought up by writ of error from the Circuit Court of the United States for the district of Maryland.

On the 11th of April, 1854, a charter-party was executed by B. H. Silsbee, acting owner of the ship Shirley, and F. L. Barreda & Brother, residing in Baltimore, acting as agents for the Pervian Government. The charter-party provided that the ship should 'proceed to Callao, from Australia, where she is at present bound,' and take in a cargo of guano at the Chincha Islands. The freight to be paid was at the rate of twenty-five dollars in full per ton of 20 cwt. net, guano, custom-house weight.

At the conclusion of the charter-party, there was the following stipulation:

'The ship to have the benefit of any advance on the guano freights made by the charterers in the United States before she finishes loading at the islands. It is understood the ship is to be laden as deep as prudent, without regard to the clause restricting her to one-third above her register tonnage.'

The principal question in the case was upon the construction of this clause, and whether chartering other vessels, under the circumstances mentioned in the opinion of the court, brought the case of the Shirley within its operation.

The opinion of the court also contains the instructions given by the Circuit Court to the jury, together with the exception to evidence.

The case was argued by Mr. Wallis and Mr. Nelson for the plaintiffs in error, and by Mr. Brune and Mr. Johnson for the defendants in error.

At the trial in the court below, both parties, plaintiffs and defendants, applied to the court for instructions to the jury; but the court rejected those offered on both sides, and gave instructions of its own. In the argument here, all these propositions were necessarily discussed, and it would not be possible to report these arguments without stating also the prayers to the court below, which it is not considered necessary to do. But the exception to the admissibility of the parol testimony stands in a different situation, and, with respect to that, the points made by the respective counsel were as follows:

For the plaintiffs in error, it was contended:

3. That parol evidence was not admissible to affect the construction of the subsequent charters in question, or to show any intentions or views of the plaintiffs in error and the other contracting parties in making them, because it is not pretended, and there is no evidence professing to show, that there was any outside contract or understanding in reference to any one of them, varying or qualifying the written stipulations in any way, or that any intentions or views of the plaintiffs in error, or of the other parties, were embodied on carried out otherwise than in and through the writings themselves, by which, and which only, all parties agreed to be and held themselves bound.

This point was in conflict with the court's second instruction, and was raised by the sixth prayer of the plaintiffs in error.

Shankland v. The Corporation of Washington, 5 Peters, 394.

Sprigg v. Bank of Mt. Pleasant, 14 Peters, 200.

Selden v. Myers, 20 Howard, 509.

4. That even if parol evidence had been admissible at all, under the circumstances stated in the preceding point, the particular parol proof especially objected to by the plaintiffs in error was not, because it consisted exclusively of statements made by agents of the plaintiffs, not only without authority, but in direct opposition to the written instructions, which constituted their special and only authority. It was not offered on behalf of a party to whom the alleged representations were made, nor to show that any such party was induced, by such representations, to enter into a contract by which he did not intend and agree, knowingly, to be bound. It was the naked offer of the unauthorized statements of agents-made while negotiating contracts, which they were authorized to and did negotiate-produced in evidence, neither to contradict nor to qualify the written stipulations agreed on, nor to avoid the instruments themselves, but merely to show the existence of fraudulent intentions, which, if they existed at all, were not otherwise carried out than by the writings, and the imputation of which is perfectly grantuitous.

This point was raised by the first exception of the plaintiffs in error, and was in conflict with the court's second instruction, also.

2 Starkie's Evidence, 34.

Farlie v. Hastings, 10 Ves. jun., 126, 127.

Betham v. Benson, 1 Gow., 45.

5. That the imputation of fraud, on the part of the plaintiffs in error, was not only gratuitous, but unnecessary. The utmost that could be made out of the charters with the $5 clause, by the aid of all possible parol proof, would be, that they were contracts for the use of vessels, out to the Chincha Islands and back to the United States, at $30 per ton of guano delivered. Let them be as fradulent as could be desired, they could amount to nothing worse than that. If that establishes an 'advance' on the Shirley's freight, it is quite clear that a single charter-party, with provisions equivalent to that, must make out the case of the defendants in error as effectually as fifty. Now, all the charter-parties with the $5 clause, negotiated by Nesmith & Sons, are actually, in terms, to that identical effect, without the assistance of parol proof. All of the vessels so chartered were to proceed 'direct' from New York or the other ports in the United States where they were. The owners elected to do so, in the very act of making the contracts, and the language of the charters was altered accordingly. The case of the defendants in error could not be bettered, therefore, by showing that the Boston charters, with the aid of parol testimony, amounted to what was patent on the New York charters, without it. Hence the parol proof in controversy was as superfluous as it was in opposition to what are believed to be the established rules of evidence.

The counsel for the defendants in error contended:

2. Parol testimony of the declarations and statements of Nesmith & Brown, the agents of F. L. Barreda & Bro., made by them in respect to the charter-parties which they were negotiating, prior to and at the time of the execution thereof, are admissible and competent evidence to explain the meaning and purpose of unusual provisions, to inform the ship-owners whether the plaintiffs in error meant to avail themselves of privileges reserved in the charters, or would waive them, as well as to show the true character of the transaction, that there was in fact a rise in freights, to the benefit of which the defendants in error were entitled, and that it was the object of the plaintiffs in error to disguise and conceal such rise by the form of the charter-parties executed by them.

U.S. v. Gooding, 12 Wh., 469, 470.

American Fur Co. v. U.S., 2 Pet., 364.

Stokes v. Saltonstall, 13 Pet., 183, 186, 194.

Wood v. U.S., 16 Pet., 360.

Wescot v. Bradford, 4 Wash. C. C. R., 500.

Hayes v. Rutter, 24 Pick., 245.

Hammett v. Emerson, 27 Maine, 332, 335.

Franklin Bank v. Steward, 37 ib., 524.

Wilson v. Hart, 7 Taun., 303.

Crocker v. Lewin, 3 Sumner, 1, 6, 10.

Jasigi v. Brown, 17 How., 183.

1 Greenleaf's Ev., sec. 285.

2 Cowen Phillips's Ev., (3d Amer. Ed.,) 354, 368, 369.

Note 290, p. 587.

2 Starkie's Ev., (7th Amer. Ed.,) 765, 766, 790, 791.

Gresley's Eq. Ev., 288.

Powell on the Law of Evidence, 144, 147.

96 Law Library, 100, 102.

Duvall v. Medtart, 4 H. and I., 15.

Byer v. Etnyre, 2 Gill, 160.

The U.S. v. The Amistad, 15 Pet., 594.

Mr. Justice CLIFFORD delivered the opinion of the court.