Moore v. Sun Printing & Publishing Ass'n

• Decision Date: 28 June 1899
• Citation: 95 F. 485
• Parties: MOORE v. SUN PRINTING & PUBLISHING ASS'N.
• Court: U.S. District Court — Southern District of New York

95 F. 485

MOORE v. SUN PRINTING & PUBLISHING ASS'N.

United States District Court, S.D. New York.

June 28, 1899

Zabriskie Burrill & Murray, for libelant.

Franklin Bartlett, for respondent.

BROWN District Judge.

The above libel was filed to recover for the loss of the yacht Kanapaha by stranding on September 5, 1898, when she ran upon a reef on the north coast of Cuba about 2 1/2 miles from the shore and about 7 miles east of Nuevitas while proceeding westward in the service of the defendant. The yacht had been chartered through the negotiations of Chester S. Lord manager of the news department of the Sun newspaper, first for a period of two months for $5,000 by charter dated April 1, 1898, and afterwards by charter dated May 14, 1898, for $10,000 more for four months from June 1 to October 1, 1898. The yacht was used by the Sun as a dispatch boat for obtaining news pertaining to the Spanish War in cruising in Cuban waters. In both charters Mr. Lord was designated as the 'hirer' of the yacht; but each charter was signed 'Chester S. Lord for the Sun Printing and Publishing Company. ' The charter provided that the hire should be paid on signing the agreement, and that the hirer should man and equip the yacht, pay all expenses and surrender her in as good condition as at the start, fair wear and tear from reasonable and proper use only excepted, and free from all liens and charges, and be liable and responsible for any and all loss and damage to hull, equipment, etc. In each charter there was also the further provision:

'That for the purpose of this charter the value of the yacht shall be considered and taken at the sum of $75,000, and the said hirer shall procure security or 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.'

At the time of the execution of the second charter the yacht was at sea in the service of the respondent under the former agreement; and when the second charter was executed and delivered, the agreement of suretyship which it called for was at the same time delivered to the libelant. This latter agreement purports to be between the Sun Printing &amp Publishing Company and the libelant. It refers to the charter dated May 14, 1898, as annexed and made part thereof, and declares that at the request of the hirer, the defendant 'enters into the following understanding and agreement of suretyship; First, that the hirer will well and faithfully perform everything in the annexed agreement upon his part to be performed; second, that the respondent expressly waives and dispenses with notice of any demand, suit or notice of nonperformance, etc., the intention of this understanding being to hold us primarily liable under the terms of the annexed agreement'; third, 'that our liability hereunto shall in no case exceed the sum of $75,000.' This instrument, instead of being executed by some other person than Mr. Lord, was signed like the charter itself, 'Chester S. Lord for Sun Printing and Publishing Association,' without more; and it was acknowledged by him before a notary public, as done 'under authority of said company and as its act and deed.'

The answer denies that Mr. Lord had any authority to execute either the charter parties or the agreement of suretyship on account of the defendant, or that the defendant was bound thereby; it admits that the yacht was used as a dispatch boat by the defendant corporation in cruising and obtaining news, until she was stranded; and alleges that in executing the above papers Mr. Lord acted on his own responsibility, and without the authority of the defendant's board of trustees or of any of its members; that the defendant has fully paid for the use made of the yacht by the defendant, and that the yacht was lost by sea perils, without any fault or negligence on the part of defendant or its employes.

Up to within a few days of the loss of the yacht, she had been kept insured for the sum of $60,000 under various policies taken out by Chubb & Sons as agents, for which on three different occasions bills had been rendered to the defendant and the premiums paid by the defendant's checks. These insurances, however, which had been previously three times renewed, all expired on September 1st, four days before the yacht was stranded, and were not again renewed. The libelant claims that the defendant is responsible as principal under the charter as well as under the guaranty; and that the loss being total, the liability is fixed at $75,000 as i a valued policy; and that defendant is, therefore, liable under the agreement for that amount.

1. The first question litigated is whether the charter is to be held the contract of the Sun, or as only the agreement of Mr. Lord, through lack of authority on his part to bind the defendant. The two papers are inartificially drawn and executed. The intention of the owner apparently was to let the ship nominally and in form to Mr. Lord, who is called the 'hirer'; and at the same time to take a guaranty from the Sun, the defendant, by which it should make itself virtually the principal; but Mr. Lord evidently did not understand that he was hiring the yacht individually, since he did not sign the charter in his own name simply or for himself, but only 'for the Sun Printing and Publishing Company.' And the guaranty annexed to the charter, which purported to bind the Sun as 'primarily liable,' i.e. as virtual principal, was not signed by any officer of the Sun as an independent obligation would naturally have been signed, but by Mr. Lord only, 'for the Sun Printing and Publishing Association.' The two papers must be construed together, therefore, and as forming one contract; so that if Mr. Lord had authority to bind the Sun, it must be held from the form of the signatures to both papers that the defendant is bound thereby, since it is obvious that Mr. Lord intended to bind the Sun and not himself.

Though written charters of...