Norton-Crossing Co. v. Martin, 1 Div. 18

CourtSupreme Court of Alabama
Writing for the CourtSAYRE, J.
PartiesNORTON-CROSSING CO. v. MARTIN.
Docket Number1 Div. 18
Decision Date21 November 1918

81 So. 71

202 Ala. 569

NORTON-CROSSING CO.
v.
MARTIN.

1 Div. 18

Supreme Court of Alabama

November 21, 1918


Rehearing Denied Feb. 13, 1919

Appeal from Circuit Court, Mobile County; Norville R. Leigh, Jr., Judge.

Action by William H. Martin against the Norton-Crossing Company. Judgment for plaintiff, and defendant appeals. Reversed and rendered. [81 So. 72]

Palmer Pillans, of Mobile, for appellant.

Gregory L. & H.H. Smith, of Mobile, for appellee.

SAYRE, J.

This is a suit by appellee to recover freight prepaid under a contract of charter party entered into between appellee and appellant. The vessel and cargo were lost at sea.

On the submission of this cause a motion to strike a part of the bill of exceptions was argued, and the court very strongly intimated its opinion that the motion should be overruled. We see no reason now for a different opinion. It would not have been proper on a motion of this character to mutilate the bill of exceptions settled and signed by the trial judge. Appellant cannot accept its bill by piecemeal. If dissatisfied, it should have moved to establish its bill, and upon that motion all parts of the bill would have come under revision, resulting in a whole historically correct and consistent with itself throughout.

The complaint is stated in three counts. One is the common count for money received by the defendant for the use of plaintiff. Two is for money paid by plaintiff to defendant as freight due by the plaintiff to the defendant for transportation on the schooner Margaret Haskell from Pensacola to a port outside of the United States, and it is alleged that "thereafter said 'Haskell,' while upon said voyage, was lost at sea, and said freight money was never earned, but the defendant has, nevertheless, failed and refused to pay the same to the plaintiff, although often requested so to do." Three is similar to two, the difference being immaterial to any question raised in the cause, which was tried by the court without a jury on the plea of the general issue.

The facts were undisputed, and may be summarized as follows: Plaintiff and defendant, the latter owning the vessel, entered into a contract of charter party under which the schooner Margaret Haskell was to carry a cargo of lumber from a safe Gulf port to the west coast of Italy. The instrument was signed "Norton-Crossing Company, by Jos. H. Strange, Pres.," and "Gulf Export Company, by Wm. H. Martin, Manager," and it appeared that Gulf Export Company was the trade-name in which plaintiff did business. The vessel was loaded at Pensacola by the Gulf States Shipping Company, and by it the freight was prepaid to defendant. The gross freight amounted to $48,754.25; but there was a stipulation for the payment by the charterer of certain charges by him of $4.50 per standard of the entire cargo. Of the freight money, $6,841.27 was applied to those charges, and $2,437.71 was applied in payment of brokerage, as provided by the contract. Five per cent. was retained for insurance.

Defendant contends that by the terms of the charter party, construed in the light of attendant circumstances, the freight was due whether the voyage was or was not performed; that the action was not rightly brought in the name of the plaintiff; and, in any event, that the judgment was excessive.

It is the admitted law of the American courts that, where there is no specific agreement to the contrary, freight for the transportation of goods by sea is not deemed to [81 So. 73] be earned until the voyage is completed and the goods are delivered, or ready to be delivered, at the point of destination.

However, the parties may stipulate by express words, or by words which, though not express, are sufficiently intelligible to that end (Ellenborough in Silvale v. Kendall, 4 M. & S. 37), that the freight, or any part thereof, shall be payable absolutely at the time of the shipment of the cargo, or at a certain time thereafter, without regard to performance of the contract by the carrier. 7 Am. & Eng.Ency.Law, 246.

In the preparation of the contract in this case, dated November 4, 1915, a printed form was used. The ninth paragraph of the original form read as follows:

"The freight to be paid in cash without discount, less the advance, if any, on right and true delivery of the cargo but the receivers of the cargo are to pay on account of freight during delivery, if on the continent, in cash, at the rate of exchange current on the day of steamer's arrival for short sight bankers' bills on London."

By cancellation and interlineation this paragraph was made to read:

"The freight to be paid without discount in advance."

And at the end of the printed form these words in manuscript were added:

"Full freight to be prepaid on signing bills of lading Vessel to pay cost of war and marine insurance on prepaid freight not exceed 5%."

Defendant's contention going to the right of recovery, to state it in another form, is that these provisions of the charter party suffice to make it clear that the parties intended that the freight should be considered as earned, whether or not the vessel or goods were lost on the voyage, or, at least, that these provisions left the contract ambiguous on this point, so that evidence aliunde should have been admitted to interpret the otherwise indeterminate intention of the parties.

As the contract, according to defendant's construction of it, was intended to control the American rule of law applicable to such contracts, and to substitute an agreement of the parties to a different effect, the burden rested upon defendant to make this plain to the court. The weight of this burden is thus expressed by the Supreme Judicial Court of Massachusetts, per Bigelow, C.J., in Benner v. Equitable Ins. Co., 6 Allen (Mass.) 222:

"It is necessary to express it in terms so clear and unambiguous as to leave no doubt that such was the intention in framing the contract of affreightment. Otherwise the general rule of law must prevail."

Recurring in the first place to the change in the ninth paragraph, we are unable to see that, directly or by implication, it accomplished or signified anything more than to make the freight payable in advance, leaving the question whether it should be returned to plaintiff in the event that contract of carriage was unperformed to be wholly determined by the general rule of law on that subject, or by the manuscript addition to the contract, if that were sufficient to effect a change in the application...

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5 practice notes
  • Kuykendall v. Edmondson, 8 Div. 424.
    • United States
    • Supreme Court of Alabama
    • October 12, 1922
    ...does not rely solely on a denial of the cause of action, the matter of defense must be specially pleaded. Norton-Crossing Co. v. Martin, 202 Ala. 569, 81 So. 71; L. & N. R. R. Co. v. Bartee, 204 Ala. 539, 86 So. 394, 12 A. L. R. 251; Rhodes v. McWilson, supra; Barrett v. City of Mobile, 129......
  • Reliance Life Ins. Co. v. Russell, 7 Div. 235.
    • United States
    • Supreme Court of Alabama
    • November 2, 1922
    ...objection was well taken. L. & N. R. R. Co. v. Perkins, 165 Ala. 471, 473, 474, 51 So. 870, 21 Ann. Cas. 1073; Norton, etc., v. Martin, 202 Ala. 569, 573, 81 So. 71. But no prejudice resulted to defendant from this erroneous ruling, since the witness, in replying, testified: "Not that I kno......
  • Bond Bros. v. Kay, 8 Div. 315.
    • United States
    • Supreme Court of Alabama
    • June 18, 1931
    ...Ala. 471, 51 So. 870, 21 Ann. Cas. 1073; Sovereign Camp, W. O. W., v. Hoomes, 219 Ala. 560, 122 so. 686; Norton-Crossing Co. v. Martin, 202 Ala. 569, 81 So. 71; Reliance Life Ins. Co. v. Russell, 208 Ala. 559, 94 So. 748; Southern Rwy. Co. v. Haynes, 186 Ala. 60, 65 So. 339), and knew the s......
  • Hunter v. Lauderdale Cotton Mills, 1 Div. 441
    • United States
    • Supreme Court of Alabama
    • March 31, 1927
    ...paid becomes ex equo et bono the property of the shipper, and the law raises an implied contract to refund. Norton-Crossing Co. v. Martin, 202 Ala. 569, 81 So. 71. Appellant does not question this rule, but seeks a reduction for the amount paid out under conditions stated in plea 10. Count ......
  • Request a trial to view additional results
5 cases
  • Kuykendall v. Edmondson, 8 Div. 424.
    • United States
    • Supreme Court of Alabama
    • October 12, 1922
    ...does not rely solely on a denial of the cause of action, the matter of defense must be specially pleaded. Norton-Crossing Co. v. Martin, 202 Ala. 569, 81 So. 71; L. & N. R. R. Co. v. Bartee, 204 Ala. 539, 86 So. 394, 12 A. L. R. 251; Rhodes v. McWilson, supra; Barrett v. City of Mobile, 129......
  • Reliance Life Ins. Co. v. Russell, 7 Div. 235.
    • United States
    • Supreme Court of Alabama
    • November 2, 1922
    ...objection was well taken. L. & N. R. R. Co. v. Perkins, 165 Ala. 471, 473, 474, 51 So. 870, 21 Ann. Cas. 1073; Norton, etc., v. Martin, 202 Ala. 569, 573, 81 So. 71. But no prejudice resulted to defendant from this erroneous ruling, since the witness, in replying, testified: "Not that I kno......
  • Bond Bros. v. Kay, 8 Div. 315.
    • United States
    • Supreme Court of Alabama
    • June 18, 1931
    ...Ala. 471, 51 So. 870, 21 Ann. Cas. 1073; Sovereign Camp, W. O. W., v. Hoomes, 219 Ala. 560, 122 so. 686; Norton-Crossing Co. v. Martin, 202 Ala. 569, 81 So. 71; Reliance Life Ins. Co. v. Russell, 208 Ala. 559, 94 So. 748; Southern Rwy. Co. v. Haynes, 186 Ala. 60, 65 So. 339), and knew the s......
  • Hunter v. Lauderdale Cotton Mills, 1 Div. 441
    • United States
    • Supreme Court of Alabama
    • March 31, 1927
    ...paid becomes ex equo et bono the property of the shipper, and the law raises an implied contract to refund. Norton-Crossing Co. v. Martin, 202 Ala. 569, 81 So. 71. Appellant does not question this rule, but seeks a reduction for the amount paid out under conditions stated in plea 10. Count ......
  • Request a trial to view additional results

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