Simonton v. Winter

ERROR to the circuit court of the county of Washington, in the district of Columbia.

In the circuit court, the defendants in error, the plaintiffs below, instituted an action of covenant on a charter party, dated July 15, 1820, at Bath, Maine, by which they, the plaintiffs, let and hired to the defendant the brig James Monroe, to proceed from Bath to Havana, thence to Mobile and elsewhere, as Simonton should direct, the dangers of the seas excepted, for the term of twelve months, from the 7th of July. The plaintiffs covenanted to keep the brig in good order and well victualled during the said term, the dangers of the seas excepted. The defendant, on his part, covenanted, inter alia, to pay to the plaintiff for the hire of the brig, four hundred and twenty-five dollars each and every month during the said term, in manner following, to wit: six hundred dollars on the arrival of the brig at Havana; and then six hundred dollars from time to time, as often as the charter of the brig should amount to that sum; that is to say, when the brig should have earned six hundred dollars at the rate of the charter party, it was to be paid in Spanish dollars in the United States, or in good and approved bills, &c.

The declaration, after setting out the covenants, and averring performance on the part of the plaintiffs, &c. in the usual form, avers that the brig was taken into service by defendant, on the said 7th July 1820, sailed on the 16th from Bath to Havana, where she arrived, and continued under the control and in the employment of defendant, under said charter party, till the 20th of January then next ensuing, when, in the prosecution of a voyage under the direction of defendant, she was totally lost by the perils of the sea: that the brig, at the time of her loss, had earned the sum of two thousand three hundred and thirty-four dollars seventeen cents, for her hire and affreightment from the 7th of July 1820, to the 20th of January 1821, at the monthly rate stipulated by the charter party. The refusal of the defendant to pay this sum, or any part, in any of the modes of payment stipulated in the charter party, is the breach of covenant complained of.

The defendant pleaded four several pleas-upon the first of which issue was joined, and there was on this plea a trial and verdict, and judgment for the plaintiffs on the same. The plaintiffs demurred to the remaining pleas, and judgment was given for them. The first plea, after craving oyer of the charter party, which was granted, set forth that the plaintiffs ought not to have or maintain their action aforesaid against him, because he says that the said defendant hath paid to the said plaintiffs all and every such sums of money as were become due and payable from the said defendant, according to the tenor and effect, true intent and meaning of the said articles of agreement; and of this he puts himself on the country, &c.

The question presented to the court, on the record of the proceedings of the court below on the trial of this issue, is contained in a bill of exceptions taken by the counsel for the defendant.

The bill of exceptions, after stating certain matters of fact, which were admitted to prove, and did prove, the payment of two hundred and ten dollars, by John W. Simonton, to the agent of the plaintiffs, and for their use, proceeds to say: 'and the plaintiffs, without giving evidence to the jury, prayed the court to instruct the jury as follows:'

'The plaintiffs insist before the jury, under the issue of fact joined in this cause, that the plea is no traverse of any averment in the declaration, necessary to establish the primary obligation to pay what is therein demanded, nor imposes on the plaintiffs any necessity in supporting the issue on their part above joined, to prove any averment in their declaration: but that the whole onus probandi under the affirmative plea of payment, is on the defendant to prove such payment as he has allege. And the plaintiffs pray the court to instruct the jury accordingly.' Which instruction the court gave, being of opinion, and so expressing it to the jury, that upon the issue joined in this case, and which the jury had been sworn to try, the defendant had assumed upon himself the burden of proving that he had paid the hire of said vessel for the time stated in the declaration, at the rate of four hundred and twenty-five dollars per month: to which instruction, the defendant, by his counsel, excepted,' &c.

The second plea of the defendant alleged that the plaintiffs did not on their part keep and perform their covenants in the charter party: that the brig did not pursue the voyage and voyages ordered and appointed for her by the defendant, and did not carry on the legal trade on which the defendant, and ployed her; but without sufficient cause deviated therefrom on the 27th November 1820, while under the control of the defendant under the charter party; omitted to proceed from Port au Prince to Crooked Island as ordered; and in violation of the agreement proceeded to the Havana against the orders of the defendant, by which great expense was sustained, and the voyage in which the brig was engaged was greatly delayed and defeated; and afterwards during the charter party, the brig, against the will of the defendant, sailed from Crooked Island to Rag Island, instead of to Mobile, where she was destined according to orders, whereby the voyage to Mobile was defeated; and that on the 20th of January 1821, the brig was wholly lost by shipwreck, and a cargo on board, of the value of ten thousand dollars, was wholly lost and destroyed. Wherefore, &c.

The third plea alleges, that while the brig was lawfully subject to the orders of the defendant, she was dispatched in a lawful trade from Port au Prince to Crooked Island, and under such orders sailed on the 27th day of November 1820, on that voyage; and according to the tenor and effect of the agreement, it was the duty of the captain and crew of the brig, acting on behalf of the plaintiffs, to have carried the brig to Crooked Island: yet the captain and crew, in violation of the orders of the defendant, carried the vessel to the Havana, to the great injury of the defendant, whereby the covenants in the charter party were wholly broken by the plaintiffs. Wherefore, &c.

The fourth plea stated, that on the 30th of December 1830, the brig James Monroe was at Crooked Island for the purpose of taking on board a cargo of salt for the defendant, to carry the same from thence direct to Mobile; and the defendant, relying on the faithful performance of their duty by the captain and crew, caused insurance to be effected on the cargo of salt from Crooked Island to Mobile; yet the captain and crew, well knowing the same, did deviate from the voyage to Mobile without lawful authority or excuse, and proceeded from Crooked Island to Rag Island: in consequence of which, and after the said deviation, the brig and cargo were wholly lost by shipwreck on the 20th of January 1821, and the policy of insurance became wholly void and of no effect; and the defendant thereby sustained damages to the amount of ten thousand dollars, whereby he became discharged from all further payments under the charter party, and from the performance of any of the agreements contained in the charter party. Wherefore, &c.

The defendant in the circuit court prosecuted this writ of error.

The case was argued by Mr Coxe for the plaintiff in error, and by Mr Jones for the defendants.

Mr Coxe, for the plaintiff in error, contended, as to the instructions given upon the trial of the issue under the first plea, that by the terms of the charter party, no part of the monthly freight was due until the end of the month. Covenants were to be performed on both sides. The plaintiff averred performance, and the defendant pleaded payment of all moneys due and payable.

If this had been an action upon a bond, with a condition; the plaintiffs would have been obliged to assign specific breaches, and to prove them.

The plea does not say that the defendant had paid the whole amount claimed by the plaintiffs, but that payment had been made so far as freight had been earned; and if the plaintiffs claimed and were entitled to more than the sum of two hundred and ten dollars, which was paid, they should have proved that more was earned and due under the charter party. By going to trial on this plea, the defendant need not go beyond it.

If the plea was not issuable, and if the plaintiffs had taken judgment upon it, they would have been obliged to prove their damages before a jury of inquiry. As issue was joined upon the plea, the plaintiffs should have proved that the vessel performed the charter party, and earned the freight; and also that the amount of six hundred dollars was payable when the vessel arrived at Havana, and the same amount when it was afterwards earned. If any freight was due under the charter party, it must have been because the vessel had delivered the goods of the charterer, and had under his direction performed the voyage or voyages designated or ordered by him. It was therefore essential, that evidence to establish these facts should have been exhibited on the trial of this issue.

The substance of the second, third and fourth pleas, to which the plaintiff demurred is, that the owners retained the management of the brig, and the charterer was to direct the voyages to be performed by her. They engage to carry the vessel to every port required by the charterer. The pleas aver, that the master of the brig deviated from the orders of the charterer, and thereby caused her loss and that of the cargo. By demurring, the plaintiffs admit these facts. Cited, Pothier on Charter Parties, 16, &c.

Mr Jones, for the defendants in error.

The charter party was itself sufficient to show the amount due to the owners of this vessel. The sum payable was four hundred and twenty-five dollars per month, and at the same rate for a fraction of a month. The time the vessel was in the employ of the charter being shown, or admitted by the pleadings, no evidence could be necessary to maintain the issue under the first plea.

As to the remaining pleas, he argued that the covenants of the owners of the brig did not create conditions precedent; so that the breach of one on the part of the owners, created an excuse for the nonperformance of the obligations of the charterer.

If the conduct of the master of the brig had been such as to entitle the charterer to claim damages for his misconduct, they should be recovered in a distinct suit, and could not be set off in this suit. Cited, 4 Maule and Selw. 208. 5 Petersdorf, 301. 7 Petersdorf, 96 to 106, 404 to 407. 5 Petersdorf, 311, 314, 326, 328, 332.

Mr Justice THOMPSON delivered the opinion of the Court.