Auten v. Bennett

• Decision Date: 06 February 1906
• Parties: AUTEN v. BENNETT.
• Court: New York Court of Appeals Court of Appeals

183 N.Y. 496

76 N.E. 609

AUTEN

v.BENNETT.

Court of Appeals of New York.

Feb. 6, 1906.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by George M. Auten against James Gordon Bennett. From a judgment of the Appellate Division (90 N. Y. Supp. 1087,98 App. Div. 627), affirming a judgment for defendant, plaintiff appeals. Reversed.

See 84 N. Y. Supp. 689.

Leopold Leo and Robert P. Orr, for appellant.

Robert W. Candler, William Jay, and Flamen B. Candler, for respondent.

BARTLETT, J.

The plaintiff, as the assignee of the cause of action of Charles H. Merrill, the owner of the steam yacht Mindora, brings this action to recover damages arising out of the alleged breach of the charter party, whereby the use of said yacht was granted to the defendant, as will more fully appear by the contract which reads as follows: ‘This is to certify that I, Chas. H. Merrill, of Exeter, New Hampshire, do hereby agree to charter my steam yacht Mindora to the New York Herald for two months, or longer, and it is also agreed that the New York Herald has the privilege of extending the charter for as long a period of time as they wish at the expiration of the two months; it is agreed that this charter commences on the 10 day of June and expires on the 10 day of August, unless otherwise previously arranged. The consideration of this charter is three thousand dollars per month ($3,000) and I, Chas. H. Merrill, do agree to furnish boat, pay crew's wages not to exceed $800 per month, and uniforms, and agree to deliver the Mindora at New York. The New York Herald agrees to furnish all supplies, also a marine and fire insurance, also insure the yacht against the perils of war and return her in as good condition as when she was received, free from all debts whatsoever. It is also agreed that the New York Herald returns the yacht to New York. [Signed] William C. Reick, for James Gordon Bennett. Charles H. Merrill.’

The plaintiff alleges that the defendant is in breach of his contract by reason of the fact that he failed to return the yacht in as good condition as when she was received; that as matter of fact the defendant returned and redelivered said yacht in a damaged condition which necessitated considerable repairs, materials, and labor, whereby the plaintiff's assignor was damaged in the aggregate sum of $6,133.41. This case has been twice tried. The first trial resulted in a verdict for plaintiff for $4,000; the judgment entered thereon was reversed by the Appellate Division (84 N. Y. Supp. 689), and a new trial ordered. At the second trial, the complaint was dismissed on the merits at the close of plaintiff's case. The issues are exceedingly simple and confined, as the learned trial judge stated on the second trial, to the charter party, which stands as the sole contract between these litigants. The course of the second trial proceeded to some extent outside of the real issues by reason of the evidence offered by plaintiff, and resulted in questions that were not properly in the case under the pleadings.

The complaint in this action is well drawn, and confines the issues to the charter party. The burden of proof under which the plaintiff rested was to establish that the yacht had been duly delivered to the defendant in a seaworthy condition, and that he had accepted her and she continued in his custody until about the 22d of August, 1898, when, in violation of the charter party, she was returned in a damaged condition; that the damages amounted to a certain sum; that the cause of action arising under this breach of the charter party was duly assigned to the plaintiff, George M. Auten. Thereupon the defendant under his answer was called upon to prove, if he could, that he was not in breach of the contract by reason of returning the yacht in a damaged condition, and that he had suffered damages growing out of the unseaworthiness and inability of the yacht to continue in the service of the defendant during the two months and more covered by the contract. The defendant would also be called upon to prove the amount of these alleged damages which he seeks in his answer to recoup and set off against any claim which the plaintiff might establish. It would thereupon become incumbent upon the plaintiff to rebut this evidence of the defendant, if possible, and to establish that, during all the time that the defendant was using the yacht as a news boat in the Spanish War, she was seaworthy and in good condition; that if repairs were necessary, it was due not to any defects in the yacht, but rather to the severe service in which she was engaged, which involved a high rate of speed in all kinds of weather, or any other conditions constituting evidence in rebuttal.

At the trial the plaintiff swore the marine engineer who had charge of the yacht during this southern cruise under the charter party. As there is an implied warranty under every charter party that the vessel to which it relates is seaworthy, it was proper for the plaintiff to show, as he did by this witness, that he had made a thorough examination of the yacht just prior to her delivery to the defendant, and found her seaworthy. It was also proper for him to prove that the yacht had been duly delivered to the defendant or his agent under the charter party, and the same duly accepted, and that on a certain day she left New York and started on her voyage to the West Indies. It was at this point in his proofs that the plaintiff departed from the issues as framed, and sought to show that certain accidents to the machinery of the yacht during her cruises, when in the custody of the defendant under the charter party, were due to causes other than her unseaworthiness and inability to continue in the service of the defendant. This testimony was objected to by the defendant, and the court sustained the objection. The court very properly reminded the counsel for plaintiff that the evidence offered was entirely outside of the charter party, and the allegations of the complaint, and that if he wished to introduce it, he could withdraw a juror and apply for leave to amend the complaint. This course was not adopted by the plaintiff, but the result was that under the suggestion of the court he made an offer to prove certain facts, which was objected to by the defendant's counsel, and the court sustained the objection, and dismissed the complaint on the merits. In this offer the plaintiff proposed to show that the yacht was not returned in as good condition as when she was delivered to the...