Bond v. Hilton

• Decision Date: 30 June 1855
• Citation: Bond v. Hilton, 2 Jones 149, 47 N.C. 149 (N.C. 1855)
• Court: North Carolina Supreme Court
• Parties: BOND & WILLIS v. JAMES B. HILTON.

2 Jones (NC) 149

47 N.C. 149

BOND & WILLIS

v.JAMES B. HILTON.

Supreme Court of North Carolina.

June Term, 1855.

For every breach of the duties arising out of a contract, the law awards some damages; and if none other are proved, nominal damages should be given by the verdict of the jury.

ACTION of TRESPASS ON THE CASE, tried before his Honor, Judge PERSON, at the Spring Term, 1855, of Washington Superior Court.

The plaintiffs and defendant were part owners of the schooner Sarah Louisa: a cargo belonging, one half of it to Short & Co., and the other half to the owners of the vessel, was put on board. The defendant agreed to act as master of the schooner from Plymouth to the West Indies and back, and the cargo was consigned to him. The defendant, in charge of the vessel, left Plymouth on the 26th or 27th of December, 1848; arrived at New-Berne, (where it was understood he should call to have a sail repaired,) on 30th December; left that place about 6th of January, for Ocrocoke, and returned to New-Berne on 26th January. Sometime in February, the defendant put one Capt. Moss in charge of the schooner as master, (quitting her himself,) and about the latter part of March, the schooner, under the command of Moss, left New-Berne and made her voyage to the West Indies. She returned in April or May. The usual time of a voyage to the West Indies is two months. It was in evidence, on behalf of the defendant, that the return to New-Berne and the detention there, were caused by the necessity for repairs, which were made on the vessel at that place.

It was in evidence that the value of the vessel was $10 per day, of which sum, the captain's wages constituted a part, and were equal to $1.50 per day. The plaintiff's counsel contended that the defendant was guilty of neglect in the delay: also in abandoning the vessel to Moss; and that they were entitled to recover for these breaches of the duties arising out of the contract.

His Honor charged the jury that, inasmuch as the plaintiffs had not declared on the contract, they could not recover for any violation of it, merely.

That if the defendant had omitted to act with ordinary skill and diligence, and plaintiffs had suffered damage thereby, they could recover to the extent of that damage.

That the mere fact that the defendant had turned the vessel over to Moss, did not entitle the plaintiffs to recover any thing, unless they satisfied them that they had sustained damage thereby. To these instructions plaintiffs excepted for error.

Verdict for the defendant. Judgment and appeal.

Winston, jr., and Rodman, for the plaintiffs .

Smith and Heath, for the defendant .

NASH, C. J.

When this case was before the court at June Term, 1853, it was decided that the action was properly brought in “Case.” Busb. Rep. 308; see also, Williamson v. Dickens, 5 Ired. R. 269. The controversy arises upon the charge of his Honor, who tried the cause below upon the question of damages: the jury were informed that “inasmuch as the plaintiffs had not declared on the contract, they could not recover for any violation of it merely.” And again, “the mere fact that defendant had turned the vessel over to Moss, did not entitle the plaintiffs to recover any thing, unless they satisfied the jury that they had sustained damage thereby:” in other words, that to entitle the plaintiffs to recover, they must show that they had sustained actual damages. In this opinion we do not concur.

The defendant had entered into a contract with the plaintiffs, as owners of the vessel, to navigate her as Master, to the West Indies and back to Plymouth. He took charge of her, and on his way, at New-Berne, he put a Capt. Moss in command, and abandoned the vessel: No special loss or damage was proven by the plaintiffs. Under these facts, the sole question is, are the plaintiffs entitled to recover any thing of the defendant? We hold that...