Moore v. Sun Printing & Publishing Ass'n

• Citation: 101 F. 591
• Decision Date: 03 April 1900
• Docket Number: 123.
• Parties: MOORE v. SUN PRINTING & PUBLISHING ASS'N.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

101 F. 591

MOORE v. SUN PRINTING & PUBLISHING ASS'N.

No. 123.

United States Court of Appeals, Second Circuit.

April 3, 1900

George Zabriskie, for libelant.

Franklin Bartlett, for respondent.

Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges.

WALLACE Circuit judge.

The yacht Kanapaha, owned by the libelant, was wrecked by stranding upon a reef on the northerly shore of the island of Cuba, about 2 1/2 miles from the shore, and about 7 1/2 miles from Nuevitas, while proceeding westward to the port of Havana, and became a total loss. Her owner brought this action to recover her value against the Sun Printing &amp Publishing Association, as the charterer of the yacht, under whose control and management she was at the time. The charter provided that at the expiration of the charter term (four months,-- from June 1 to October 1, 1898) the charterer would return the yacht 'in as good condition as at the start fair wear and tear from reasonable and proper use only excepted. ' It also provided that the charterer should be 'liable and responsible for any and all loss and damage to hull, machinery, equipment, tackle, spars, furniture, and the like,' and that the charterer should 'procure security and guaranty to and for the owner in the sum of $75,000 to secure any and all losses and damages which may occur to said boat or its belongings which may be sustained by the owner by reason of such loss or damage, and by reason of the breach of any of the terms or conditions of this contract. ' The libel alleged the breach of these conditions, and also alleged that the yacht was lost by the negligent navigation of the charterer. The court below decreed in favor of the libelant, awarding him a recovery of $65,000, with interest. (D.C.) 95 F. 485. Both parties have appealed from the decree, the defendant insisting that it was not liable at all, and the libelant insisting that the damages awarded should have been $75,000 and interest.

That the Sun Printing & Publishing Association was the charterer of the yacht, notwithstanding Chester S. Lord was named as such in the contract, and that the corporation sanctioned and ratified his act in entering into the charter, we entertain no doubt; and we fully agree with the learned judge who decided the cause in the court below in respect to these propositions, and deem it necessary to enlarge upon the very satisfactory reasons assigned in his opinion. As the defendant was the real principal, the libelant was entitled to enforce the contract against it, notwithstanding it purported to be a contract of the agent. Steamship Co. v Harbison, 21 Blatchf. 332, 336, 16 F. 688.

It is insisted for the charterer that the yacht perished without any fault on the part of those who were navigating her, and, consequently, that the case is one for the application of the principle, well settled in the law of bailments, that the hirer is absolved from further obligation where the hired thing is destroyed without his fault, so that redelivery to the bailor is impossible. This principle is deduced from the implied conditions of a contract of bailment by which the bailee only undertakes to exercise due care in the use of the article hired, and to restore it to the bailor in as good condition as when received, unless it be destroyed or deteriorated by natural decay, or by external means without his default. The rule of the law of bailments does not conflict with the general principle that where a party, by his own contract, creates a duty or obligation, upon himself, he is bound to make it good, or answer in damages, although prevented from performance by inevitable accident. This principle is applicable to contracts of hiring as well as to all other contracts, and its application is illustrated in numerous decisions in respect to a great variety of contracts. Thus it has always been settled that when a lessee has covenanted in his lease to keep the demised premises in good order, and surrender them to the lessor at the expiration of the term in as good order as they were originally, he is bound to rebuild, although the premises are meantime destroyed by an accidental fire. Beach v. Crain, 2 N.Y. 86; Hoy v. Holt, 91 Pa.St. 88; Leavitt v. Fletcher, 10 Allen, 119; Coles v. Manufacturing Co., 39 N.J.Law, 326; Proctor v. Keith, 12 B.Mon. 252; David v. Ryan, 47 Iowa, 642. The principle has been applied with great strictness in charter party contracts. Thus, in Pope v. Bavidge, 10 Exch. 73, where the charter provided that the vessel should make six specified voyages not later than a specified day, it was held to be no defense in an action by the charterer against the shipowner that during the first three voyages the vessel was so damaged by accidents of the seas and navigation that she could not be repaired in time to perform the remaining voyages. In Burrill v. Crossman, 35 U.S.App. 608, 16 C.C.A. 381, 69 F. 747, we had occasion in this court to apply it in the case of a charter party, and held that, inasmuch as the contract contained an absolute obligation to do certain acts within a time definitely fixed, nonperformance was not excused, although performance became impossible by events occurring without the fault of the promissor. In that case the defense was that performance was made impossible by the act of the public enemy,-- the war vessels of a foreign power. The cases which are sometimes referred to as exceptions to the general rule are not exceptions, but were those in which impossibility of performance existed when the contract was made and its obligations were held discharged upon the ground of mutual mistake, or those where the contract itself implied a condition that performance should be dependent upon the continued existence of the subject of the contract. The general doctrine may be stated in the language of the court in Baily v. De Crespigny, L.R. 4 A.B. 185:

'There can be no doubt that a man may, by an absolute contract, bind himself to perform things which subsequently become impossible, or to pay damages for the nonperformance; and this construction is to be put upon an unqualified undertaking where the event which causes the impossibility was or might have been anticipated and guarded

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