1 Haw. 30 (Haw.Super. 1848), Haskins v. Shillaber

Citation:1 Haw. 30
Opinion Judge:LEE, CHIEF JUSTICE
Party Name:BENJAMIN F. HASKINS v. THEODORE SHILLABER.
Attorney:Mr. DeFiennes and Mr. Hawes for plaintiff. Mr. Jasper for defendant.
Judge Panel:CHIEF JUSTICE LEE
Case Date:April 01, 1848
Court:Superior Court of Hawai'i
 
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Page 30

1 Haw. 30 (Haw.Super. 1848)

BENJAMIN F. HASKINS

v.

THEODORE SHILLABER.

Superior Court of Hawai'i.

April 1, 1848

Syllabus by the Court

In an action to recover the purchase money for a ship and her appurtenances, among which was enumerated " thirty tons pig iron ballast, " it appeared that the ballast turned out but thirteen and a half tons, and defendant was allowed a corresponding deduction from the gross price.

Mr. DeFiennes and Mr. Hawes for plaintiff.

Mr. Jasper for defendant.

LEE, CHIEF JUSTICE

This was an action of assumpsit to recover the sum of $1, 360 with interest from the 28th day of January, 1848. The plaintiff introduced evidence showing that on the 28th of January last the Peruvian brig " Enriqueta, " of which he was captain, was sold by F. W. Thompson, auctioneer, to the defendant for the sum of $1, 360, and that the same was a cash sale. The defense was, that by the terms of the sale, the vessel was to contain thirty tons of pig iron ballast-that instead of containing thirty tons as by contract, she contained only 131/2 tons, and the defendant was entitled to a deduction from the price bid equivalent to the value of the ballast wanting. Evidence was offered showing the value of pig iron ballast to range from fifty to one hundred dollars per ton on shore, and from forty to fifty dollars per ton on board vessels.

The plaintiff contended that the auctioneer had exceeded his authority in selling the ballast for thirty tons, and that he was not bound by his warranty of quantity. That the ballast as stated in the inventory of the vessel left with the Peruvian Consul, was thirty tons " more or less." The defense proved by the auctioneer that the inventory left with him by the plaintiff contained the item " thirty tons of pig ballast" without the qualifying clause " more or less, " and that by this inventory he sold the vessel, & c.

CHIEF JUSTICE LEE charged the jury that the plaintiff pursuing his remedy on the contract, thereby affirmed the sale, and could not therefore deny the authority of his agent the auctioneer. That to do this would be to invalidate the whole ground of his present action. That the plaintiff, if the...

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