Freiberg Lumber Co. v. Rosalie Mahoney Steamship Corp.
| Decision Date | 05 June 1919 |
| Citation | 111 A. 279,31 Del. 44 |
| Court | Delaware Superior Court |
| Parties | THE FREIBERG LUMBER COMPANY, a Corporation of the State of Ohio, v. ROSALIE MAHONEY STEAMSHIP CORPORATION, a corporation of the State of Delaware |
Superior Court for New Castle County, May Term, 1919.
SUMS. CASE, No. 1, March Term, 1918.
Action by the Freiberg Lumber Company against the Rosalie Mahoney Steamship Corporation. Verdict rendered for plaintiff.
The plaintiff introduced evidence to show that on March 21, 1917 the parties entered into a charter contract, whereby the plaintiff chartered the steamship Rosalie Mahoney, then owned by the defendant, for a term of six calendar months from the delivery of the steamer, but not before June 15, 1917; that if delivery should be made after July 15, 1917, the plaintiff had the right to refuse acceptance on or before the day of delivery; that the steamer was to be employed in United States ports, Mexican and Central American ports, and ports of the Caribbean Sea and West Indian Islands, at $ 400 a day and for the purpose of transporting mahogany logs to be used in connection with plaintiff's business of manufacturing mahogany and mahogany veneer, with the right to sublet; that defendant failed to deliver the steamer in accordance with the provisions of the charter, but, in fact, after the steamer had been damaged by fire, on April 18, 1917, sold her, on June 20, 1917, in her damaged condition; that the Rosalie Mahoney could have been repaired for delivery at a reasonable cost, and within a reasonable time, under the terms of the charter; that by reason of the failure of defendant to deliver the steamer, the plaintiff lost the difference between the charter hire and what it would have cost to charter a like steamer during the said term of six calendar months. The cost of chartering steamers similar to the Rosalie Mahoney during said period was shown, which was greatly in excess of the hire of the Rosalie, and the president of plaintiff company testified that the company chartered, on July 6, 1917, a steamer of only half the capacity of the Rosalie Mahoney, for $ 425 per day. He admitted, on cross-examination, that, about May, 1917 finding no available cargoes for the boats then under his company's control, it offered for chartering, or subletting, at least one steamer, and possibly more than one.
When the plaintiff rested, counsel for defendant moved for a nonsuit, on the ground that plaintiff had failed to show any damage; that there was no testimony to show that, from the day the charter was signed, the plaintiff did not have, at all times, other boats chartered which carried all its logs without extra expense to it; that even though, under the charter, the plaintiff had the right to sublet, and might have been able to sublet the steamer at a profit, yet there had not been a suggestion that the plaintiff intended or had tried to sublet the steamer, but, on the contrary, that plaintiff only wanted her for the purpose of the mahogany trade.
In reply it was contended that if, under the evidence, only nominal damages could be recovered, there should not be a nonsuit, and especially so since it had been shown that the plaintiff company, during the period covered by the charter, chartered another boat, of only half the capacity of the Rosalie Mahoney at the sum of $ 425 per day; that the measure of damages was the difference between the charter price of the Rosalie Mahoney and the market value of the same or a similar steamer during the term for which the charter was to run.
Verdict for plaintiff.
Caleb. S. Layton (of Marvel, Marvel, Layton and Goldsborough); Murray Seasongood (of the Ohio Bar); and Horace L. Cheyney (of the New York Bar) for plaintiff.
Andrew C. Gray (of Ward, Gray and Neary) and Alfred H. Stickland (of the New York Bar), for defendant.
OPINION
We decline to grant the motion for a nonsuit.
The defendant introduced evidence for the purpose of showing that the Rosalie Mahoney was, on April 18, 1917, so damaged by fire that the cost of repairs to her former condition would be so large, and the time required so long, that defendant was relieved of its obligation to deliver the steamer under the charter.
Other facts and contentions of the parties appear in the charge of the court.
HEISEL, J. (charging the jury). This is an action brought by the plaintiff, the Freiberg Lumber Company, a corporation of the state of Ohio, against the defendant, the Rosalie Mahoney Steamship Corporation, a corporation of the state of Delaware, to recover damages for the breach of a contract heretofore entered into by them.
The plaintiff claims that on March 21, 1917, it entered into a contract, sometimes called a charter party, or charter, with the defendant, whereby the plaintiff chartered the steamship Rosalie Mahoney, then owned by the defendant, for a term of six calendar months, time to commence from the delivery of the vessel, but not before June 15, 1917; that delivery under the charter could be made at any time after June 15, 1917, but, if delivery should be made after July 15, 1917, the plaintiff had the right to refuse to accept the vessel on or before the day of delivery; that the charter hire was for $ 400 a day, and the vessel was to be employed in United States ports, Mexican and Central American ports, and ports of the Caribbean Sea and West Indian Islands. Plaintiff further claims that defendant failed to deliver the vessel in accordance with the provisions of the contract, or charter party, although plaintiff was willing and anxious to accept her, and so notified defendant or its agents; that by reason of such failure of defendant to deliver the vessel the plaintiff lost the difference between the charter price of $ 400 a day and the cost of chartering a like vessel during the term of six calendar months for which the charter was to run, amounting in the aggregate, approximately, to the sum of $ 63,000.
Defendant admits the execution of the charter party or contract, but claims that on April 18, 1917, while at Jacksonville Florida, fire broke out on board the vessel, which so damaged her that the costs of...
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