Bardach & Co. v. Char. Port Ters.

• Decision Date: 01 October 1925
• Citation: 143 Va. 656
• Parties: BARDACH IRON AND STEEL COMPANY, INC. v. CHARLESTON PORT TERMINALS.
• Court: Virginia Supreme Court

Page 656

143 Va. 656

BARDACH IRON AND STEEL COMPANY, INC. v. CHARLESTON PORT TERMINALS.

Supreme Court of Virginia, Richmond.

October 1, 1925.

Absent, Christian, J.

1. CONTRACTS — Stevedoring — Set-off — Burden of Proof — Case at Bar. — In the instant case, a notice of motion for judgment by plaintiff for work in handling scrap and loading it upon a steamer for defendant, defendant plead the general issue and a special plea of set-off for negligence in the loading. On the issues raised between the parties, the burden was upon the plaintiff to show what its services were, and whether or not it was entitled, for the rendition of such services, to the amount which it claimed in its account filed with the notice, or, if not to the whole amount, what recovery it was entitled to. Upon the issue of negligence in loading raised by the special plea, the burden lay upon the defendant to establish its claim that the material was improperly and negligently loaded and that it suffered a loss accordingly.

2. CONTRACTS — Stevedoring — Conflict in Evidence — Case at Bar. — In the instant case, a notice of motion for judgment by plaintiff against defendant for services rendered by plaintiff in handling scrap iron and loading it for defendant, the evidence for plaintiff showed that plaintiff was directed by defendant to make arrangements for the unloading of the scrap and reloading; that plaintiff only engaged itself in loading or stevedoring material upon barges and sailing vessels, and did not undertake to load or stevedore any material upon steamers; that defendant was notified of that fact, and that defendant allowed plaintiff to engage a stevedore company and perform whatever other services were necessary for terminal handling and storing of the scrap. On the part of the defendant the evidence was in conflict with that of plaintiff, and defendant insisted that it had a definite contract that the entire work was to be done by the plaintiff as contractor, at the gross price of eighty cents per ton. Plaintiff's evidence showed that the eighty cents per ton mentioned at one time related only to loading on vessels or barges and not to material loaded upon steamers, and that defendant was so informed.

Held: That a verdict for plaintiff absolutely determined the conflict in plaintiff's favor.

3. CONTRACTS — Stevedoring — Set-off — Negligence in Loading — Case at Bar. — In the instant case, a notice of motion for judgment by plaintiff against defendant for services rendered by plaintiff in handling scrap iron and loading it for defendant, defendant filed a special plea of set-off claiming negligence on the part of the plaintiff in loading by reason of which defendant had suffered a loss in excess of plaintiff's claim. Upon conflicting evidence on the question of negligence of defendant in loading, the jury rendered a verdict in favor of plaintiff.

Held: That the conflict in the evidence upon the material points at issue rendered the case peculiarly one for submission to a jury, and while there was great conflict, there was abundant evidence on the part of the plaintiff to sustain the verdict of the jury in its favor.

4. AGENCY — Proof of Agency — Declaration and Acts of Agent — Special Agency. — Where one claims to be the agent of another, or acts as the agent of another, his authority so to act cannot be proved by the declaration, or act, or conduct, of the agent alone. There must be other competent evidence establishing the fact of agency; and where the agency is special and not general, declarations and acts of the agent not in connection with the authority specially conferred upon him are not binding upon the principal, unless the acts and declarations are of such a character as to justify an inference that the principal knew of them and would not have permitted them if unauthorized.

5. CORPORATIONS — Officers and Agents — Authority of Agent — Question for Jury. — Corporations can only act through agents, and when one acting as agent is not an outside party appointed for a special purpose, but is a permanent employee or officer of the company, the question as to the authority and power of such a representative should be left to the jury, unless the evidence shows that his authority on the occasion in question was necessarily limited.

6. AGENCY — Authority of Agent — Rights and Liabilities as to Third Persons. — The general rule is that as between the principal and agent and third persons, the mutual rights and liabilities are governed by the apparent scope of the agent's authority, which is that authority which the principal has held the agent out as possessing, or which he has permitted the agent to represent that he possesses, in which eyent the principal is estopped to deny that the agent possessed the authority which he exercised. In such cases the apparent authority, so far as third persons are concerned, is the real authority; and when the third person has ascertained the apparent authority with which the principal has clothed the agent, he has a right to rely thereon.

7. AGENCY — Special Agent — Agent of Foreign Corporation — Permanent Employee — Case at Bar. — In the instant case, an action to recover for stevedoring services, defendant, a foreign corporation, sent a superintendent, a permanent employee, to the place of loading, who remained there during the entire time of loading and directed the stevedores to work overtime, telling them that defendant would pay them. There was evidence that the superintendent, while the president of the company was present, exercised some degree of direction in the loading, and that upon the departure of the president he was regarded as the representative of the corporation. Defendant had written plaintiff that the superintendent would be on hand to inspect the material loaded and claimed that this constituted him a special agent without authority to oversee the loading.

Held: That the fact of agency and the extent of the agent's authority was properly submitted to the jury.

8. CONTRACTS — Stevedoring — Evidence — Harmless Error — Case at Bar. — In the instant case, an action to recover for services in handling scrap iron and loading it upon a vessel, the action of the court in admitting a letter in evidence was assigned as error. The letter bore only on the question of damages which should be allowed to the defendant under its plea of set-off, provided the jury found for the defendant under such plea.

Held: That the jury having found that the defendant was not entitled to any damages under its plea of set-off, the admission of the letter was clearly harmless.

9. DEPOSITIONS — Notice — Reasonable Notice — Case at Bar. — In the instant case a deposition was objected to on the ground that reasonable notice of its taking had not been given defendant. It appeared that deponent was a ship-master who was leaving port and desired to be back on his steamer by twelve o'clock. Plaintiff's counsel succeeded in locating him at half past ten, and immediately called opposing counsel and asked him to accept service of notice to take the deposition at half past eleven. Opposing counsel stated that he was not busy at half past eleven and would let plaintiff's counsel know whether he could accept service. At eleven o'clock opposing counsel called up plaintiff's counsel to say that he would not accept service. Thereupon notice was served upon defendant to take the deposition at half pasn eleven.

Held: That the court did not err in allowing the deposition to be read.

10. DEPOSITIONS — Notice — Reasonable Time. — Section 6228 of the Code of 1919 requires that a reasonable notice in writing shall be given of the time and place of taking depositions. What is reasonable notice depends on the circumstances of each case, and is left largely to the discretion of the trial court, which will not be reviewed unless it has been abused. The chief circumstances to be considered are the distance, the number of witnesses, and the facility of communication to obtain proper representation at the taking.

11. CONTRACTS — Stevedoring Contract — Agent of Contractor — Case at Bar. — In the instant case, an action for stevedoring services, the trial court instructed the jury that if the plaintiff did not hold themselves out as stevedores for steam vessels, and did not contract with defendant to load steam vessels, and with the consent of defendant employed an independent stevedoring company of recognized ability to load the ship, and plaintiff was not to receive any profit on stevedoring contracts, they should find for plaintiff on defendant's plea of set-off for negligence in the loading.

Held: That this instruction was not erroneous as based upon the theory that plaintiff undertook to do stevedoring, and having contracted to do it, sublet that work to another contractor.

12. NOTICE OF MOTION FOR JUDGMENT — Quantum Meruit — Stevedoring Contract — Case at Bar. — In the instant case it was assigned as error that under the language in the notice of motion for judgment plaintiff could not recover on a quantum meruit, or for money expended as the request of defendant, but only upon proof that it had itself performed the work in question. The language of the notice is: "For services rendered in stevedoring, handling and storing a certain lot of scrap iron at your special instance and request."

Held: That the language of the notice was sufficient to admit of its being considered as a common count in assumpsit for money laid out and expended at the instance of another.

13. NOTICE OF MOTION FOR JUDGMENT — Construction of Notice. — Notices of motion for judgment are to be liberally construed.

14. CONTRACTS — Stevedoring — Custom of Port. — Upon the question of negligence in loading a vessel with scrap iron the court instructed the jury that if they found there was no agreement that the scrap material was to be loaded specially in the manner claimed by defendant, and that at the port the general custom was...