Piaggio v. Somerville

• Decision Date: 13 January 1919
• Docket Number: 20460
• Court: Mississippi Supreme Court
• Parties: PIAGGIO v. SOMERVILLE

80 So. 342

119 Miss. 6

PIAGGIO v. SOMERVILLE

No. 20460

Supreme Court of Mississippi

January 13, 1919

Division A

1 SHIPPING. Charters. Performance. Submarine danger.

The owners of vessels are bound to transport cargoes as provided in their charter party, notwithstanding the risk to their vessels of being sunk by a submarine, or pay damages for their failure so to do, for the rule is that when a party, by his own contract, creates a duty or charge upon himself he is bound to discharge it, although so to do should subsequently become unexpectedly burdensome or even impossible.

2 SAME.

The answer to the objection of hardship in all such cases being that it might have been guarded against by a proper stipulation.

3 CONTRACTS. Nonperformance. Excuse. Illegality.

There are three classes of cases in which a party is excused from the performance of a contract: First---A subsequent change in the law, whereby performance becomes unlawful; Second---The destruction, from no default of either party, of the specific thing, the continued existence of which is essential to the performance of the contract; Third---The death or incapacitating illness of the promissor in a contract which has for its object the rendering by him of personal services.

4 SHIPPING. Charters. Assignment. Waiver of clearance.

The assignor of a charter party is entitled to recover from the assignee the consideration of the assignment which was payable on clearance of the vessel, where the assignee made full settlement with the owners of the vessel, though such owners refused to permit the vessel to sail, since in such case, clearance was waived by such settlement.

5. SHIPPING. Charter. Assignment. Consideration.

Where the consideration for an assignment of a charter party was "payable on clearance," such clearance was not a condition precedent to the assignors' right to recover the consideration, but was merely the time fixed for payment of a present liability, and where there was no clearance, the assignor was entitled to payment within a reasonable time.

HON. J. H. NEVILLE, Judge.

APPEAL from the circuit court of Harrison county, HON. J. H. NEVILLE, Judge.

Suit by J. W. Somerville against Henry Piaggio. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

B. E. Eaton, for appellant.

For a correct understanding of the appellant's view of this case, it is necessary to restate and emphasize the conditions upon which the charter party was assigned by the appellee to the appellant. The particular language of the assignment is the following: "For and in consideration of fifteen hundred dollars, payable in cash to J. S. Somerville on the clearance of this vessel at Mobile, Alabama, under this present charter, etc." For the plaintiff to be entitled to recover under the terms of the assignment, it was essential and imperative that the schooner "Henry S. Little" should have cleared from the port of Mobile under this present charter. The only excuse for this vessel not clearing which could have been availed of by the appellee as giving him a right to the consideration is that some act of appellant should, in and of itself, have prevented the vessel from clearing under this present charter from Mobile.

In other words, if the vessel was prevented from clearing by a wrongful act of appellant, then the appellee might have treated this wrongful act of appellant as the equivalent of the clearance of the ship under this charter, but if no wrongful act of appellee intervened and prevented the clearance, then the plaintiff has no right of recovery, whatever may have been the reason for the failure of the vessel to clear.

While it is not material in its legal aspect whether the owners of the Henry S. Little were or were not justified in refusing to sail, still it is pertinent to observe that they were justified under at least two separate decisions of the Supreme Court of the United States.

The general principle announced is that a master of a vessel upon the high seas has a right, and it is his duty, to refuse to take any chances which will seriously subject either the vessel or the cargo or the crew to destruction, and if, upon the high seas when such emergency arises, it is his duty to take such course with his vessel as will subject it to the least peril of capture or destruction. The first and leading case is the Steamship Styria v. Morgan, 46 Lawyers' Ed. 1027. The supreme court of the United States reaffirmed the doctrine of the Styria case in the case of Kronprinzessin Cecilie, 61 L.Ed. 960, submitted to and decided by the supreme court after we had entered the war with Germany.

It is unquestionably true that the owners of the Henry S. Little were absolutely within their legal rights in refusing to sail and they were within their legal rights also in maintaining that they were not liable for any damages sustained by the appellant because of the refusal of the vessel to sail. It also follows that the appellee assigned to appellant not an enforcible or valuable right in any respect, but a nullity and there was therefore no consideration whatever upon which to base a right to recover the stipulated cost of the assignment.

However, apart from this discussion, the appellee had no right of recovery against appellant, even, if under the law, the owners of the vessel had no right to refuse to sail. The consideration stipulated in the assignment was payable solely upon the condition that the vessel would clear from the port of Mobile, under this charter. This the vessel declined to do, and whether rightfully or wrongfully, the loss suffered by the appellant was the same. If the vessel declined to sail, certainly the appellant would have a cause of action against it for its breach of contract and he would have a right to recover such damages as he had sustained. However, neither his right to recover such damages nor the actual recovery thereof would give appellee a right to recover against him the assignment consideration, because this consideration is payable, not upon whether appellant received damages for the failure of the ship to sail, but upon the actual sailing of the vessel under the assigned charter. By the very terms of the article of assignment, appellee assumed whatever risk was incurred in the possible failure of the vessel to sail. Apparently it was anticipated that the vessel might not sail, since otherwise there was no reason for making payment contingent upon the sailing of the vessel from a definite port under a specific charter party. It therefore becomes a condition precedent that the vessel sail under its assigned charter party before ever the consideration becomes payable to appellee and the following authorities illustrated the necessity of all conditions precedent occurring before a recovery may be had. "Performance of conditions precedent to right of action must be strictly proved to entitle plaintiffs to recover. A contract for the purchase of butter between O and M provided that O would keep twenty cows during the ensuing season and would sell the butter from their milk to M at a fixed price which he agreed to pay. O provided the cows, but towards the close of the season sold five, whose milk failed, and did not supply their places. Held, That M was not bound to take and pay for the butter made. Keeping twenty cows during the season was a condition precedent." Oakley v. Martin, 62 Am. Dec. 49; Standard Construction Co. v. Broutley Granite Co., 90 Miss. 16; Cleary v. Morson, 94 Miss. 278; Brennan v. Brennan, 185 Mass. 560, 102 Am. St. Rep. 363; Burdis v. Burdis, (Va.), 70 Am. St. Rep. 825.

There are may citations to and examples of conditions precedent in 12 C. J. 407.

The appellee cannot successfully maintain that the acceptance of seventy-five hundred dollars by appellant is in lieu of and equivalent to the sailing of the vessel under its charter party. This claim cannot be made, first, for the obvious reason that it is not true; and second, because the facts stated in the plea make it impossible successfully to take this position. The assignment itself is not based on any doctrine of equivalents. It is specifically based upon the happening of a certain event--viz., the sailing of a vessel under a certain charter.

The principle of this case is completely illustrated by the following decision of the supreme court of Louisiana:

"The Stipulation: It is hereby agreed that in case the Hamburg, Ruston & Southern Railway is not completed to Farmersville within two years and to Ruston within three years, this contract is null and void," is a condition precedent, and the agreement is null and void if that road is not built within that time. It does not suffice that another road of greater advantage than the one named should be built. It is not a case for the application of the doctrine of equivalents. He had a right to stand upon the precise terms of the agreement. Union Saw Mill Co. v. Lake Lbr. Co., 44 So. 1000.

We respectfully submit that a full consideration of the facts of this case under the legal principles will lead to its reversal and an order of dismissal to the court below.

White & Ford, for appellee.

We submit the provisions for payment on clearance was simply the time of payment and no contingency of a failure to sail was in the minds of the parties at the time of making the assignment. If it had been, they would have provided against it. But that is immaterial for the reason that appellant is now estopped to raise the question of her failure to sail, having by his own act prevented the sailing. The main and most interesting question in the case is: Was the "Little" required to sail? We contend she was.

We ask the court to read the...