Braithwaite v. Power

• Decision Date: 15 January 1891
• Citation: 1 N.D. 455,48 N.W. 354
• Parties: Braithwaite v. Power et al., (Aikin et al., Intervenors.)
• Court: North Dakota Supreme Court

1 N.D. 455

48 N.W. 354

Braithwaite

v.Power et al., (Aikin et al., Intervenors.)

Supreme Court of North Dakota.

Jan. 15, 1891.

Syllabus by the Court.

1. The master of a vessel agreed for a stipulated price to transport goods from Bismarck, Dak., to Ft. Buford, Mont. The closing of navigation interrupted his voyage. A few days afterwards consignee forcibly took the goods from him. Held, that the master, being able and willing to complete the transportation to earn his freight, could recover full freight.

2. No time of delivery being specified in the contract of affreightment, held, further, that the master could rightfully have held the goods until the opening of navigation, that he might earn his freight by completing the transportation.

3. Held, that plaintiff might sue upon the contract of affreightment set forth in the opinion as the trustee of an express trust, under section 4872, Comp. Laws.

4. The owners of three steamers operated them jointly for their own benefit, under the name “Benton Line.” Held, that they were all liable as partners or joint traders on a contract of affreightment made by their authorized agent in such name of “Benton Line” to carry goods in place of one of such boats. It seems that by operating such boats jointly in such a manner for two seasons the owners would have rendered themselves liable as partners or joint traders even though they had not been such in fact.

5. One of three defendants having died pendente lite, and his administrator having been substituted, and having voluntarily appeared and defended the action, and no objection having been raised by any of the defendants to such a course until after trial and verdict, held, this court would not on appeal of surviving defendants reverse judgment against all the defendants when the portion thereof relating to the administrator provides that the judgment against him shall be paid only in due course of administration.

6. The district court of the state of North Dakota is the successor of the territorial district court, and has jurisdiction to render judgment in actions pending in such territorial court at the time of the admission of the state into the federal Union, although the verdict was rendered before such admission.

7. Defendants cannot raise the point that a judgment against them should have been in favor of the plaintiff alone, and not in favor of the plaintiff and intervenors. This is a matter exclusively between the plaintiff and the intervenors.

Appeal from district court, Burleigh county; W. H. Winchester, Judge.

Francis & Barnes, for appellants. Geo. W. Newton, for respondent Braith waite. Louis Hanitch, for intervenors.

Corliss, C. J.

In November, 1880, the steamer Eclipse sailed from Bismarck, in the territory of Dakota, on an eventful voyage up the Missouri river, bound for Ft. Buford, Mont., laden with army supplies consigned to the quarter-master at that point. She never reached her destination, but was frozen in about 60 miles from the fort by water and 35 miles from it by land. There has been much litigation connected with this vessel. Some of it has been finally disposed of, (Rea v. Eclipse, 30 N. W. Rep. 159; on appeal, 135 U. S. 599, 10 Sup. Ct. Rep. 873;) and some of it awaits final settlement by this court on this appeal. The purpose of this action was to recover full freight for transporting these military stores under an agreement to carry them from Bismarck to Ft. Buford. Deferring for the present the consideration of the question whether the defendants against whom the judgment appealed from was rendered are liable, and whether the plaintiff has shown a right to maintain this action for such freight in his own name, we will first determine whether any freight can be recovered at all, and, if so, whether full freight, or only a portion thereof, was earned. The judgment was for the full amount agreed to be paid. The goods were not delivered at the point to which they were consigned. Were there no other facts in the history of this case, the judgment of this court must condemn the recovery of any amount. A contract of affreightment is subject to the general rule of law that the person who claims compensation must perform every condition precedent of an entire contract before his claim for any amount will be heeded. Part performance will not entitle him to pro rata pay, unless such incomplete performance is voluntarily accepted by the one entitled to insist on perfect compliance with all the terms of the contract, under such circumstances that the law will imply a promise to pay for that which has been done. It is upon this principle that the adjudications stand allowing freight pro rata itineris. Pars. Merc. Law, 350; Transportation Co. v. Hoyt, 69 N. Y. 230;McGaw v. Insurance Co., 23 Pick. 405-411;Coffin v. Storer, 5 Mass. 252; The Nathaniel Hooper, 3 Sum. 542. This doctrine, with its limitation, is embodied in our Code. Section 3868, Comp. Laws. But it is here insisted that full freight was properly allowed, and the statement of additional facts is necessary that we may weigh the full force and merit of this contention. When the master of the steamer discovered that to proceed further on the voyage was for the time being impossible, he immediately began to prepare a safe place for the cargo on the shore, with the intention of afterwards taking steps to complete the transportation, and make delivery at Ft. Buford, as required by his contract. Two days were occupied in unloading, and on the following day the consignee appeared in the person of the officer of the day at the fort, and demanded the cargo. It is evident that in so short a time the master of the steamer had had no opportunity to make arrangements for completing the transportation. He was not then in default, unless he had refused to proceed further with the goods, which is not pretended, or perhaps unless the voyage had been interrupted because of his own careless act. We are not apprised that any negligence of his in this respect is claimed, nor do we find in the record anything to warrant such a contention. The voyage was suspended for a time by an act beyond the power of man to control. But the ability to complete the transportation was not necessarily gone; nor does the disposition to perform his contract seem to have been wanting on the part of the master. It is true that, had the delivery been thus prevented not merely temporarily, but for all time, the fact that this result had been brought about by the operation of the elements beyond man's control would have furnished no excuse for a failure to comply with an unconditional engagement to make delivery at the place specified; and, had there been an absolute promise to lay down these stores at Ft. Buford by a certain date, the carrier must have been without redress, though the unexpected freezing of the river had rendered delivery by that date impossible without the slightest fault on his part. But no time of delivery was prescribed by the contract of the parties. The law allows a reasonable time under all the circumstances. Comp. Laws, § 3572. The freezing of the river did not exonerate the master from the contract duty of making delivery at Ft. Buford, but, being without fault, it did release him from the obligation to deliver the goods by the same time which would have witnessed their unlading at Ft. Buford had the navigation of the river remained unobstructed. See Parsons v. Hardy, 14 Wend. 216. It cannot be possible that a consignor who places no restrictions as to time upon the transportation of his property has the right under the law to insist that a voyage commenced on the verge of winter shall be completed before navigation closes when this is impossible, no negligence of the carrier concurring to cause delay. The reasonable time in which the delivery may be made must be gauged by the exigencies of the case. To lie for months by a wharf, with clear channel from vessel's prow to point of unlading, would be indefensible. But, when caught in the ice without fault, to lie for as many months in the inexorable embrace of nature, brings no blame to man, for human laws recognize man's impotence before the might of natural laws and forces. It is true that the master was at liberty to forward the freight by other means. 1 Pars. Shipp. & Adm. 233, and cases cited. This he was given no opportunity to do. It is also true that he might without legal fault have waited until the opening of navigation in the spring to resume his voyage and transport the freight to its destination in the bottom in which it was originally shipped. It was, of course, his duty in the mean time to protect the property, and this it is undisputed he was doing when it was taken from him by force by a squad of men from the fort, acting under the instructions of the consignee. He protested against this, insisting upon his right to earn his freight by completing the transportation; but all his protests were unavailing, and he finally yielded only to superior force, without resistance, it is true, but this was commendable, as bloodshed would have probably resulted had forcible opposition been interposed.

The master has a lien on the property to enable him to earn his freight. The moment the transportation begins the lien attaches, and is not divested so long as the master is proceeding not in default. The consignor is not bound to pay until the transportation is completed in accordance with the contract, but he may not prevent the master's earning his freight. If he takes possession of the goods short of their destination, when the master, not in default, is willing and able to complete the transportation, he must pay full freight. He has prevented or waived the performance of the condition precedent. The law therefore regards it as performed. It is true that in this case the performance was prevented by the consignee, and not by the shipper; but in this respect the consignor is represented by...