Phillips v. Cornell

• Citation: 133 Mass. 546
• Parties: John M. Phillips v. Pardon Cornell
• Decision Date: 29 November 1882
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

133 Mass. 546

John M. Phillips v. Pardon Cornell

Supreme Court of Massachusetts

November 29, 1882

Bristol. Contract to recover the value of a cargo of ice, and demurrage for delay in receiving it. The case was sent to an auditor, who found that the defendant had paid for the ice all that was due, except the sum of $ 99.84, which sum he found to be due, together with $ 192, as demurrage. At the trial in the Superior Court, before Brigham, C. J., the jury returned a verdict for the plaintiff in the sum of $ 109; and the defendant alleged exceptions, which appear in the opinion.

Exceptions overruled.

E. L Barney, for the defendant.

C. W Clifford & W. Clifford, for the plaintiff.

Devens, J. Lord, C. Allen & Colburn, JJ., absent.

OPINION

Devens, J.

Without following the somewhat numerous exceptions of the defendant in the order in which he has presented them, we proceed to discuss those upon which he has relied in argument. 1. It is not necessary to determine whether demurrage, or damages for delay in the performance of his contract, in the nature of demurrage, as that term is used in admiralty, could properly have been recovered in this action against the defendant. Such damages were allowed to the plaintiff by the report of the auditor, in the sum of $ 192. A comparison of this report with the verdict rendered by the jury shows that this sum formed no part of the verdict. No damages appearing to have been allowed by the jury, all questions in relation to this subject, so far as the defendant is concerned, become immaterial.

2. The defendant complains that the fourth and fifth instructions requested by him were not given. These are connected, and should be considered together. The fourth instruction requested was that the judge should instruct the jury "that if the plaintiff sold the cargo of ice to be delivered on Hastings Wharf to the defendant, it was the plaintiff's duty to land the cargo there before he could recover." This instruction the defendant deems to have been called for by the facts in the case as they then appeared, and that the jury might well have been misled for the want of it. An examination of the evidence offered, and the claims made on behalf of the plaintiff and the defendant respectively, show that neither party asserted a contract to deliver ice on Hastings Wharf. Each contended that the contract was one to deliver ice at Hastings Wharf, the plaintiff contending and offering evidence to show that the contract was one to deliver the cargo of ice for unloading at Hastings Wharf, upon the condition that the depth of water there was not less than thirteen feet; the defendant contending and offering evidence to show that the contract was to deliver the cargo at Hastings Wharf, without any condition as to the depth of the water. An instruction as to what would be the duty of the plaintiff upon a supposed contract, such as neither party claimed to exist, could not but be confusing to a jury, and should...