Russell v. Allerton

• Decision Date: 07 February 1888
• Citation: 108 N.Y. 288,15 N.E. 391
• Parties: RUSSELL et al. v. ALLERTON.
• Court: New York Court of Appeals Court of Appeals

108 N.Y. 288

15 N.E. 391

RUSSELL et al.

v.ALLERTON.¹

Court of Appeals of New York.

February 7, 1888.

Appeal from general term, supreme court, First department.

Action by Charles T. Russell and Samuel Russell against Samuel W. Allerton, to recover damages for a breach of a contract of freight entered into between plaintiffs and defendant. The trial court found for defendant, and plaintiffs appealed to the supreme court, where the finding of the court below was affirmed. From this last ruling the plaintiffs appeal.

James L. Bishop, for appellants.

Ira D. Warren, for respondent.

PECKHAM, J.

We do not think that the effect of the words in the charterparty, ‘Charterers to approve the ventilation,’ was to leave the subject of the ventilation of the ship to the absolute, unreasonable, and wholly arbitrary decision of the charterer. The agreement was entered into in England, in July, 1878, and performance was not to be entered upon, at the earliest, until the middle of the following March, and plaintiffs were to send their ship over to Philadelphia to load. It can scarcely be regarded as credible that the owners of the vessel would place in the hands of the charterer the right to arbitrarily and without reason refuse to approve the ventilation of the ship. To give the words in question the meaning attached to them by the courts below is to palce the plaintiffs, in a matter purely of business, wholly at the mercy of others with whom they were contracting. Could the plaintiffs have intended any such result, or could the defendant have expected such action on the part of the plaintiff? The plaintiffs were to be bound at all events; but, by giving the meaning contended for by the defendant to the phrase in question, he had at all times prior to the acceptance of the ship as properly ventilated, a means of escape from a contract, which might, by that time, have become most unfavorable to him. If the circumstances changed between July and the following March so that freights were materially less than the rate contracted for, and the plaintiffs sent their ship from England to receive the load, still a simple refusal to approve the ventilation would enable defendant to avoid the binding force of the contract; while, if the rate materially advanced, defendant could enforce the contract already made. Parties have a right, of course, to make any contract they choose, so long as it is not illegal; but when the question arises as to what meaning is to be attached to words or phrases used in a contract, if there be any uncertainty or doubt concerning the same, considerations such as are above mentioned are entirely legitimate, and should not be lost sight of while endeavoring to learn the true meaning of the parties as evidenced by the terms used.

The learned judge submitted this case to the jury under an instruction that defendant was the sole judge, under this contract, of the proper kind of ventilation to be employed, and with his decision upon that point the plaintiffs herein had no right to complain. He also said that if the jury came to the conclusion, upon the evidence, that there was a positive refusal to put blowers in, that that ended the matter; that was an absolute, positive breach of the contract. The counsel for the plaintiffs requested the court to charge that the clause in question did not confer upon defendant the right to refuse to load arbitrarily, merely because he elected not to approve the ventilation, but was in the nature of a covenant on the part of the plaintiffs to do upon request whatever, considering the vessel, and the carrying of live cattle, might reasonably be required to secure the ventilation of the vessel. This the learned judge refused, and the plaintiffs duly excepted. The doctrine laid down in the charge is not in accord with that which has been announced by this court in several cases, the latest in February, 1886. See Boiler Co. v. Garden, 101 N. Y. 387, 4 N. E. Rep....