1 Haw. 51 (Haw.Super. 1851), Cobb v. Makee
|Citation:||1 Haw. 51|
|Opinion Judge:||LEE, CHIEF JUSTICE|
|Party Name:||CHARLES COBB v. JAMES MAKEE ET AL.|
|Attorney:||Mr. Montgomery for the plaintiff. Mr. Bates and Mr. Burbank for defendants.|
|Judge Panel:||LEE, CHIEF JUSTICE|
|Case Date:||July 01, 1851|
|Court:||Superior Court of Hawai'i|
Syllabus by the Court
Rule as to the admission of a ship's log-book in evidence.
A strict compliance with the terms of a contract is generally necessary to entitle either party to enforce it against the other; but, if the noncompliance does not affect the essence of the contract-as if it be broken in respect of time or mode of its performance, when neither time nor mode of performance were essential considerations-relief will be granted.
This was an action brought to recover the sum of six thousand three hundred dollars for an alleged violation of the following contract:
" It is hereby mutually agreed by and between the undersigned, that Captain Charles Cobb, of the British barque Elizabeth Archer, shall proceed to Sydney, New South Wales, with all possible dispatch, and there take in on his own or the ship's account from 200 to 300 tons of Newcastle coals, and proceed to this port to deliver the said coals to Makee, Anthon & Co., either at this port, or to proceed to the port of San Francisco and there deliver the same as Makee, Anthon & Co. may direct, for and in consideration of twenty-one dollars per English ton of 2240 lbs.-Makee, Anthon & Co. agreeing to pay for the same as above cash on delivery. Coals to be delivered at the ship's tackles, twenty-one days allowed M. A. & Co. to receive the coals after being notified that they are ready.
" Charles Cobb.
" Magee, Anthon & Co.
" Honolulu, July 3, 1850."
It appeared in evidence that immediately after the above contract, Capt. Cobb sailed for Sydney, reaching there on the 18th August; and finding that he could not procure a cargo of Newcastle coals there at any price, he set sail on the 20th of August for Newcastle, the coal port of Sydney, distant about sixty-five miles, at which port he arrived on the 22d of August. That coals being in great demand, and Newcastle crowded with ships awaiting cargoes, he was unable to load his vessel until the 18th of October, when he again set sail for Sydney, where he discharged eighty tons of coal, taken in on the ship's account, and took in other cargo to the amount of 150 tons. That he sailed for Honolulu on the 11th of November, and touching...
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