American Trading Co. v. Ingram-Day Lumber Co.

• Decision Date: 25 October 1915
• Docket Number: 16903
• Court: Mississippi Supreme Court
• Parties: AMERICAN TRADING COMPANY v. INGRAM-DAY LUMBER COMPANY

69 So. 707

110 Miss. 31

AMERICAN TRADING COMPANY v. INGRAM-DAY LUMBER COMPANY

No. 16903

Supreme Court of Mississippi

October 25, 1915

APPEAL from the circuit court of Harrison county. HON. T. H BARRETT, Judge.

Suit by Ingram-Day Lumber Company, against the American Trading Company. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Judgment reversed, and cause remanded.

Ford &amp White, for appellant.

Mize &amp Mize, for appellee.

OPINION

STEVENS, J.

This action involves the question of liability between the parties hereto for one thousand four hundred and eighty-eight dollars demurrage paid by appellee to the master of a vessel in the harbor of Gulfport. The Ingram-Day Lumber Company, appellee, a corporation engaged in the manufacture of lumber in Harrison county, Miss., entered into a written contract with the American Trading Company, a corporation engaged in the export trade, by the terms of which appellee was to sell and deliver to appellant a cargo of lumber "f. o. b. pier, Gulfport, for November loading." This contract is of date July 28, 1911. About September 13, 1911, the American Trading Company wired Ingram-Day Lumber Company stating its inability to charter a vessel for November loading, and asked that appellee extend the time of delivery until December 1st. The Ingram-Day Lumber Company replied by letter that it would be hampered by delivery of other orders in December and "preferred November loading;" that "we have all these arrangements made, and should you change the date of loading it would interfere with other loading; therefore we do not feel that we are safe in making this promise."

On September 29th thereafter the American Trading Company forwarded to appellee a copy of the charter party entered into between them and the steamship company owning the vessel Aphrodite, and advising that the ship would report for cargo by December 1st, and that the vessel would likely take advantage of its option of loading one thousand barrels of rosin, thereby slightly reducing the cargo of lumber. The Ingram-Day Lumber Company on October acknowledged receipt of the charter party and made no objection to the arrangement between appellant and the ship company, and offered no suggestion as to changing the time of delivery.

Prior to the arrival of the vessel, and on December 11th, the Ingram-Day Lumber Company made written application to the Gulf & Ship Island Railroad Company, owner of the wharf, for berthing the vessel and advising that the vessel would arrive about December 19th. The vessel did arrive in port December 19th, ready for loading on the 20th. By custom of the harbor, and on account of inadequate wharfage facilities, ships took their turn at the pier in the order of their arrival. There was no vacant berth for the Aphrodite when it arrived. On account of this crowded condition of docks she was unable to come alongside of the wharf in accordance with the rules of the railway company until December 29th. At this time it so happened that the Ingram-Day Lumber Company was loading another vessel called the Bright Wings. Under rules of the port the Bright Wings was not taking on her cargo as rapidly as she should, and was ordered out of her berth to make room for the vessel having the next claim to the berth. The agent of the Ingram-Day Lumber Company thereupon went to the wharfmaster who controls the vessels and represented to said wharfmaster that his company controlled the berthing of both the Bright Wings and the Aphrodite and directed the wharfmaster to change positions of the two ships and permit the Bright Wings to remain at the wharf, thereby delaying the berthing of the Aphrodite until January 16, 1912. When the Aphrodite did obtain a berth, the cargo contracted for had not been delivered alongside of the ship or on the pier. It appears that the Ingram-Day Lumber Company did not, in fact, have this lumber on hand at its manufacturing plant, but was busy at that time buying the lumber from various mills, and thereby accumulating it from different sources, over land and sea. This lumber continued to be delivered in installments until after the expiration of the lay days of the ship and after demurrage began to accrue. It appears, further, that under the charter party the number of lay days was twenty-nine and from the evidence that the vessel, by loading at its maximum intake per day, could have finished loading in ten days. After the ship loaded, the Ingram-Day Lumber Company, in order to obtain a so-called certificate of inspection for the cargo and obtain clearance for the vessel, was compelled to pay eight days' demurrage to the master of the vessel. After getting a certificate of inspection, appellee then made sight draft upon appellant for the purchase price of the entire cargo, and thereafter demanded from appellant reimbursement of the demurrage, and upon denial of liability brought this action in the circuit court for the recovery thereof.

The facts above stated were pleaded in detail by appellant in its notice under the general issue. At the conclusion of the testimony on the trial of the case in the circuit court both parties asked for peremptory instruction. The court granted to plaintiff, appellee here, a peremptory instruction, in pursuance of which judgment was rendered for the full amount sued for.

There was considerable testimony on behalf of plaintiff to the effect that delay in the shipment of several installments of lumber was occasioned by the wrongful acts of certain inspectors of the American Trading Company in refusing to accept certain lots of lumber tendered for inspection at the mills. There is evidence to the effect that certain inspectors of the purchaser refused to accept these lots of lumber, and that thereafter other inspectors of the company reinspected the lumber offered and accepted it. There is no evidence that the refusal of the first inspectors was characterized by willfulness or recklessness, but for some reason not disclosed by the record the inspectors differed as to the grade of the lumber or on the question whether these particular lots of lumber would bear South American inspection, and this fact according to witnesses for appellee, delayed shipment on some of the lumber from the mills to Gulfport, the place of loading. The witnesses estimated this delay from six to eight days. The evidence does not show, however, that this delay in shipment checked or suspended the actual loading of the vessel. In other words, it is uncertain from the testimony whether during the particular time of this delay the vessel had access to a sufficient quantity of lumber to keep her busy loading. The log kept by the witness Sommerville shows that excepting Sundays and one legal holiday, the stevedore company's gangs were busy loading each of the fourteen days actually consumed in loading on and after the day the...