Pendleton Bros. v. Atlantic Lumber Co.

• Decision Date: 24 February 1908
• Docket Number: 593.
• Citation: 60 S.E. 377,3 Ga.App. 714
• Parties: PENDLETON BROS. v. ATLANTIC LUMBER CO.
• Court: Georgia Court of Appeals

60 S.E. 377

3 Ga.App. 714

PENDLETON BROS. v. ATLANTIC LUMBER CO.

No. 593.

Court of Appeals of Georgia

February 24, 1908

Syllabus by the Court.

It is error to grant a nonsuit if a verdict would be authorized for any amount of a plaintiff's demand, where the nature of the facts proved corresponds with the case laid in the petition. A nonsuit should not be awarded, even though evidence be introduced in behalf of the plaintiff which is vague and contradictory if a recovery for any amount, no matter how small, may be authorized by any reasonable inference which may be drawn by the jury from any of the testimony. The grant of a nonsuit is a matter of law. The grant of a new trial is discretionary. A nonsuit should not be granted if a plaintiff has proved his case as laid, even though in the same case a new trial might very properly be granted.

[Ed Note.-For cases in point, see Cent. Dig. vol. 46, Trial, §§ 338-340.

(a) Under the provisions of section 4 of the act of Congress approved February 13, 1893 (27 Stat. 445, c. 105 [U. S. Comp St. 1901, p. 2947]), the master of a vessel engaged by charter party for the transportation of a cargo of lumber is not authorized to refuse to sign bills of lading for the consignor because a claim for demurrage claimed to be due his vessel is not paid.

(b) Consequently a claim for demurrage for delay in clearing a port, caused by the efforts of the master of the ship to collect another claim for demurrage, even though the latter be just, is not chargeable to the charterers nor collectible by law.

(c) A recovery of the stipulated demurrage upon this ground of the plaintiffs' petition is precluded in this case by the terms of the charter party.

[Ed Note.-For cases in point, see Cent. Dig. vol. 44, Shipping, § 587.]

Error from City Court of Brunswick; A. D. Gale, Judge.

Action by Pendleton Bros. against the Atlantic Lumber Company. Judgment for defendant, and plaintiffs bring error. Reversed.

Ernest Dart, for plaintiffs in error.

Crovatt & Whitfield, for defendant in error.

RUSSELL J.

The plaintiffs in error brought a petition in the city court of Brunswick, claiming that the Atlantic Lumber Company is indebted to them for the breach of a charter party or contract of shipment made and entered into between the plaintiffs and the Atlantic Lumber Company. In the first place the suit sought to recover a certain sum stipulated in the charter party, the stipulated damages for delay in loading the vessel, whereby the loading was not completed within the time allowed and limited by the charter party (it being alleged that the delay was due to the fault of the defendant, and that such delay amounted to three and one-half days), the indebtedness thereby amounting, at $40 per day (the sum stipulated in the charter party), to $140. The plaintiff also claimed that a second item of $480 was due it by the defendant by reason of a breach of the charter party in that, after the loading was completed, the vessel was detained for a period of 12 days (at $40 a day) by the failure of the defendant to clear the vessel. The plaintiff alleges that the first item is due to the failure of the defendant, the Atlantic Lumber Company, to furnish the cargo to the vessel within the time allowed alongside and within reach of the vessel's tackle. The demurrage due under the second item, as contended for by the plaintiff, was caused by the refusal of the defendant to allow the master of the vessel to sign bills of lading with its first claim for the first item, above mentioned, entered upon the bills of lading, and clear the vessel from the customhouse upon bills of lading thus noted, with the claim for demurrage. At the conclusion of the plaintiffs' testimony, the judge of the city court granted a nonsuit and dismissed the plaintiffs' action, and exception is taken to this judgment.

Upon review of the evidence, we are satisfied that the court erred in this ruling. There was evidence in behalf of the plaintiffs which would have authorized a finding in their favor. Neither the fact that there was evidence coming from a witness introduced by the plaintiffs, which would have authorized a finding for the defendant as to the first item of demurrage, which was the basis of the plaintiffs' suit, nor the fact that the second item of $480, claimed by the plaintiffs, is not recoverable by law, would authorize a judgment of nonsuit. The plaintiffs had proved their claim as laid, and thereby had escaped liability for nonsuit, even though they might not be entitled to a verdict, under proper instructions by the court, or even if, after the jury should have rendered a verdict in their favor, it would be proper for the court to grant a new trial. Where there is sufficient evidence to prove the plaintiffs' case as laid, it is error to grant a nonsuit. Helvingston v. Macon County, 103 Ga. 107, 29 S.E. 596; Kelly v. Strouse, 116 Ga. 898, 43 S.E. 280; Savannah, Florida & Western Ry. Co. v. Ladson, 114 Ga. 762, 40 S.E. 699. And a plaintiff who has introduced evidence enough to sustain a recovery for some amount, though not the full amount claimed, should not be nonsuited. Philpot v. Chattanooga, Rome & So. R. Co., 114 Ga. 295, 40 S.E. 266; Howard v. Dayton Coal Co., 94 Ga. 416, 20 S.E. 336; Bloom v. Americus Grocery Co., 116 Ga. 784, 43 S.E. 54. A partial nonsuit is unknown to the law.

In our view of the case the plaintiffs were not entitled to recover the second item of liquidated damages claimed for demurrage, but may, if the jury should see proper to believe certain testimony introduced by the plaintiffs, be entitled to a verdict for the first item of $140. If the second item had been the only cause of the action, the court would have been justified in granting a nonsuit, but, for the reason just above stated, the court erred in not submitting the case to the jury and allowing them to construe the testimony adduced upon the first item of demurrage, for which the plaintiffs claimed the sum of $40 per day under the contract.

1. The charter party, a copy of which was admitted in evidence without objection, is as follows:

"This charter party, made and concluded upon in the city of New York this 29th day of May, in the year one thousand nine hundred and five, between Pendleton Bros., agents of the brig 'Jennie Hulbert' of New York, of the burden of 419 tons or thereabouts, now lying in the harbor of New York, of the first part, and the Atlantic Lumber Company, of the second part, witnesseth: That the said party of the first part agrees on the freighting and chartering of the whole of said vessel (with the exception of the cabin, and necessary room for the crew and stowing of provisions, sails and cables), or sufficient room for the cargo hereinafter mentioned, unto the said party of the second part, for a voyage from the port of Brunswick, Ga., to Cardenas, Cuba, on the following condition and terms: The said vessel shall be tight, staunch, strong, and in every way fitted for such a voyage, and receive on board during the voyage the merchandise hereinafter mentioned, and no goods or merchandise shall be laden on board otherwise than from the said party of the second part, or their agent, without consent expressed in writing, and no lumber to be cut. The said party of the second part doth engage to provide and furnish to the said vessel a full and complete cargo, under and upon deck, of resawed pine lumber or boards, but not exceeding 325 M. feet. Charterers have privilege of shipping three spars, each not over 75 feet long, freight to be $10.00 each, and same to be loaded by charterers free of expense to vessel. The said party of the second party agree to pay the said party of the first part, or agent for the charter of freight of said vessel as follows: $6.50 per thousand superficial feet board measure delivered, freight payable upon proper delivery of cargo at port of discharge, in United States currency or its equivalent, without discount or commission. Vessel's draft not to exceed fifteen feet when loaded. It is agreed that thirty thousand feet per running lay day, Sundays and legal holidays excepted, shall be allowed for loading the vessel, commencing from the time the vessel is ready to receive cargo and the captain reports himself so prepared, and cargo to be received at port of discharge as fast as the master can deliver same in suitable hours and weather not exceeding thirty thousand per day. And for each and every day's detention by default of the party of the second part, or their agent, forty dollars United States currency per day, day by day, shall be paid by the party of the second part or their agent to the party of the first part or its agent. The cargo or cargoes to be received and delivered alongside within reach of vessel's tackles. Vessel to employ charterer's stevedore for loading provided that rate is not higher than that charged by other responsible stevedores. Vessel to haul to wharf or anchorage designated by charterers or their agents to load and discharge, who have privilege of moving her afterwards by paying additional towage. Captain to sign bills of lading as required by charterers, without prejudice to this charter party, but at not less than chartered rates. It is understood that this vessel is now at New York, and shall proceed with all possible dispatch in ballast to enter upon this charter. The act of God, restraints of rulers, and princes, public enemies, fire, flood, draughts, strikes, combinations, or any extraordinary occurrence beyond control of either party, and all and every other dangers, and accidents of the seas, rivers, and navigation, of whatsoever nature or kind, during said voyage, always mutually excepted. A commission of five per cent. upon the gross amount of this charter

...