Am. Tow'g Co. v. Baker-Whiteley Co. , 111 Md. 504 ( 1909 )

This is an appeal from a judgment recovered by the appellee against the appellant, in the Court of Common Pleas of Baltimore, for the towing of certain scows.

The suit was brought in assumpsit on the common counts and also a special count for money due for services rendered by the plaintiff's tug Britannia in towing mud scows at the request of the defendant. An account was filed with the narr. charging the defendant with ten days' services of the tug at $125 per day. The defendant pleaded two general issue pleas, a third plea of payment and a fourth and fifth plea each setting up a special defense.

The fourth plea averred in substance that the towing for which the suit was brought was negligently and carelessly done in that the Britannia was not properly equipped for the towing and had used a defective hawser therefor whereby the scows were wrecked and lost causing a damage to the defendant greatly exceeding the plaintiff's claim.

The fifth plea averred that, in an admiralty suit in the District Court of the United States for the Eastern District of Virginia, the Standard Dredging Company which was the owner of the scows had libelled the plaintiff for the loss of the scows and had procured a decree for a large amount against it, and that in fixing the amount of the decree the Admiralty Court had allowed as a credit to the present plaintiff, who was the defendant in that case, the amount of the towage for which this suit was brought and that thereby the plaintiff's claim had been satisfied.

The case was tried before a jury upon the issues thus presented and resulted in the judgment for the plaintiff from which the appeal was taken.

There is evidence in the record tending to prove the following facts: The Standard Dredging Company, desiring to have four of its mud scows then lying in the harbor of Mobile, Alabama, taken to Baltimore, made a contract with the American Towing and Lightering Company to tow them from the former to the latter city for a compensation of one hundred and fifty dollars per day of the time that might be consumed in the trip. The Towing Company started the four scows from Mobile in tow of its tug Buccaneer, which took them in safety as far as Charleston, where they arrived in August, 1905. Apprehending that the Buccaneer might not be able to tow all four of the scows along the dangerous coast of the Carolinas and around Cape Hatteras, the Towing Company sent her forward with two of the scows, and entered into an engagement with the appellee to have its tug Britannia tow the other two scows to Baltimore at a compensation of $125 per day. The Buccaneer towed her two scows in safety to Baltimore.

The Britannia started from Charleston towing the other two scows by a nine-inch hawser of her own on August 22nd. The hawser broke twice on the first day out, although the wind was light and the sea smooth. When the second break occurred Captain Muir, who was on the Britannia as the representative of the Dredging Company, the owner of the scows, tendered to the tug's officers the use of two new sixinch hawsers, which were upon one of the scows, for the purposes of the tow, but his offer was declined and the trip was resumed with the old hawser, which had been mended. A few days later when near Cape Hatteras the hawser parted again in a storm and the tug, being unable to pick up the broken hawser or recover the scows, they were driven ashore by the storm and completely lost, and the tug proceeded to Baltimore by itself. There was also evidence tending to show that the appearance of the broken ends of the hawser where it parted indicated that it was a defective one.

After the loss of the two scows their owner, the Dredging Company, libelled the tug Britannia in the United States District Court for the Eastern District of Virginia for their loss, alleging that it had been caused by the negligence of the tug. Copies of the commissioner's report and the Court's decree in the libel suit were put in evidence in the present case. From these documents it appears that the tug was charged with one-half of the libellant's loss, and that in estimating that loss the Court took into consideration the cost of the towage of the four scows from Mobile to Charleston by the Buccaneer, but not the cost of the towage of the two scows by the plaintiff's tug Britannia from Charleston for the recovery of which this suit was brought.

The contract between the plaintiff and defendant for the towage of the two scows from Charleston to Baltimore was an oral one made over the telephone, and not reduced to writing, and there is some conflict of testimony as to its precise terms. The evidence of the plaintiff's witnesses tends to show that it was merely a chartering of the tug to the defendant at one hundred and twenty-five dollars per day, to be used by it for the purpose of the towage, while the evidence of the defendant's witnesses tends to prove that the contract was an entire one by which the plaintiff undertook to tow the two scows from Charleston to Baltimore for a compensation of one hundred and twenty-five dollars per day of the voyage.

At the close of the case in the Court below the plaintiff offered four prayers and the defendant offered eight. The Court rejected all of the prayers of both sides and gave to the jury an instruction of his own, which will receive further notice hereafter.

The plaintiff's first prayer was predicated upon the theory that the plaintiff had merely chartered the tug Britannia to the defendant for so long time as the latter might require its services at a price of $125 per day, and it instructed the jury that if they found such to have been the contract between the parties and that the defendant had used the tug for ten days, and not paid for it, their verdict should be for the plaintiff, unless the jury found that the defendant had lost by the negligence or fault of the plaintiff a greater sum than they found to be due to the plaintiff under the charter of the tug.

The plaintiff's second prayer, which was upon the measure of damages, was entirely consistent with the theory of the first prayer.

The plaintiff's third prayer was founded upon the finding by the jury that the terms of the contract between the parties were that the plaintiff hired the tug to the defendant at $125 per day to bring the scows from Charleston to Baltimore, and that the Britannia went to Charleston for them and started with them in tow for Baltimore, and that they were lost without any negligence on the part of the tug, her master or crew, and that the defendant had not paid for the service of the tug, and it instructed the jury that if they found those facts the plaintiff was entitled to recover.

The plaintiff's fourth prayer asserted that if the jury found for the plaintiff under its third prayer they should allow the plaintiff what they thought the services of the tug were reasonably worth up to the time of the loss of the scows. The second and fourth prayers allowed the interest in the discretion of the jury.

The rejection by the Court of these prayers does not come directly before us for review, as the plaintiff did not appeal, but we see no reason for their rejection, as they fairly stated the law of the case from the plaintiff's standpoint if the jury found the facts to have been as stated in the prayers.

The defendant's first prayer was properly rejected because it asserted that the uncontradicted evidence showed that by the oral agreement between the parties to the case the plaintiff had contracted to tow the two scows from Charleston to Baltimore. The testimony to that effect was not uncontradicted. The plaintiff's secretary, Edward H. Ray, who made the contract for it, testified that he refused to agree on its behalf to tow the scows from Charleston to Baltimore. Even the defendant's secretary, Robert J. Bradford, who made the contract on its behalf, testified that "he had a conversation over the telephone and hired from Mr. Ray the tug Britannia to proceed to Charleston, South Carolina, for the purpose of towing scows to Baltimore for the compensation of $125 a day."

The construction of an oral contract, whose terms are undisputed, like that of a written contract, is a matter for the Court to whom the law confides the interpretation of all contracts, but where the fact as to what were the terms or provisions of an oral contract is in dispute, and the testimony on the subject is conflicting, it should be left to the jury, not to construe the contract, but to find what it in fact was. That can ordinarily be done by instructions to the jury with hypothetical directions as to the law based upon the finding by them of the existence of specified terms in the contract. 9Cyc. 786; Bonaparte v. Roberts, 73 Md. 201; EurekaFertilizing Co. v. Balto. Copper Co,. 78 Md. 188; JosephBros. v. Schoenthal Co., 99 Md. 392.

The defendant's second prayer was properly rejected, because it asked the Court to take the case from the jury for want of any evidence legally sufficient to entitle the plaintiff to recover. Without expressing any opinion as to the weight of the evidence, we cannot agree that the plaintiff offered no legally sufficient evidence to go to the jury in support of its case.

The other prayers of the defendant assert in various forms the proposition that if the jury found that the negligence of the plaintiff or its servants in charge of its tug caused or contributed to cause the loss of the scows then it could not recover. Such negligence would not under all circumstances have prevented a recovery by the plaintiff. If the jury had found from the evidence that the plaintiff contracted with the defendant to tow the two scows from Charleston to Baltimore and failed to do so through its own negligence, or that of its agents, then their verdict should have been for the defendant. If, on the other hand, they had found from the evidence that the plaintiff merely hired or chartered the tug to the defendant for the purpose of towing scows, and that the negligence of the plaintiff or its agents in charge of the tug while doing the towing caused or contributed to cause the loss of the scows, then the plaintiff was entitled to recover the price agreed on for the use of the tug for the time that the defendant retained it, less whatever sum the jury might find that the defendant lost by reason of such negligence or fault of the plaintiff or its servants.

The former of the above propositions treats the contract as an entire one to render a particular service, and holds the plaintiff to the settled doctrine that it cannot in such cases recover the contract price under either a general or a specialassumpsit unless it shows that it has performed its part of the contract. Coates v. Sangston, 5 Md. 121; Denmead v.Colburn, 15 Md. 29; Gill v. Vogeler, 52 Md. 666; NorthBros. Strauss v. Mallory, 94 Md. 316; In re The Madras, 78 Law Times, N.S. 325; Southn. Bldg. Assn. v. Price,88 Md. 155. The latter proposition treats the contract as an open one of hiring the services of the tug for an indefinite time at a daily rate of compensation, and holds the defendant liable at that rate for the number of days that it retained the tug, recognizing at the same time its right to recoup against the plaintiff's claim any loss sustained from the careless or negligent performance of the contract by the latter. Warfield v. Booth, 33 Md. 63;Lee v. Rutledge, 51 Md. 318; Fidelity Co. v. Haines,78 Md. 458.

The defendant's third, fourth, seventh and eighth prayers were defective in not fully stating either one of the theories of the case and yet concluding to the plaintiff's right of recovery. Its fifth and sixth prayers submitted to the jury to find as a fact that the compensation to the plaintiff under the contract did not become due until the arrival of the scows at Baltimore. We find no evidence in the record tending to prove such a fact, and as the plaintiff filed a special exception to those two prayers for want of evidence to support them, they were also properly rejected.

The instruction granted by the Court of its own motion was as follows:

"The Court instructs the jury that if they find from the evidence that the defendant entered into a contract with the plaintiff whereby the latter chartered to it the tug Britannia to tow certain scows from Charleston to Baltimore, and if they further find that the said defendant agreed to pay the plaintiff for such towing at the rate of one hundred and twenty-five dollars per day, for such time as it would require said tug to proceed from Baltimore to Charleston and return from the latter place with the said scows in tow; and if they shall further find that the plaintiff's tug undertook said service, and proceeded with the same until said scows parted from said tug; and if they shall further find that after said parting it was impossible for said tug to recover said scows, and that in consequence thereof said tug proceeded on its return to Baltimore without said scows; and if they shall further find that subsequent to the loss of said scows the owner thereof being other than the defendant instituted suit against the plaintiff and recovered against it on account of the loss of said scows, then the plaintiff is entitled to recover in this case at the rate of one hundred and twenty-five dollars per day for each day which elapsed between the time when they shall find that said tug Britannia left Baltimore, and the time at which it parted from said scows, notwithstanding the fact that they may also find that the loss of said scows was due to the negligence of the plaintiff, and they may allow interest in their discretion dating from November 15th, 1907."

We are unable to agree with the learned Judge below in the view that this instruction correctly stated the law of the case to the jury. In the first place, it assumes that the oral contract between the parties to the case was in fact a chartering of the tug Britannia by the plaintiff to the defendant for the purpose of towing the scows from Charleston to Baltimore, and entirely ignores the contention of the defendant, that it was in fact a contract on the part of the plaintiff to tow the scows for the defendant from the former to the latter city. There is some evidence in the record tending to support the defendant's contention, and it was entitled to have the question, as to what the contract really was, submtited to the jury. Any single instruction intended to cover the whole case should have submitted that question.

We think the last branch of the instruction was also erroneous. It held that if the jury found that the owner of the scows, not being the defendant, had sued the palintiff and recovered against it on account of the loss of the scows, then the plaintiff was entitled to recover the stipulated daily compensation for the tug from the time it left Baltimore until it parted from the scows, even if the jury found that the loss of the scows was due to the negligence of the plaintiff.

The theory of this part of the instruction evidently is that if the owner of the scows had been made good for their loss by the plaintiff, then such owner was thereby placed in same position as if the scows had been delivered to it in Baltimore, and had sustained no loss by the plaintiff's failure to actually bring them to that city, and therefore the plaintiff was entitled to be paid for the towage. The instruction, however, does not require the jury to find that the owner of the scows had been fully satisfied for the loss of the barges. It only requires them to find that in a suit to which the defendant was not a party and where he had no opportunity to be heard there had been a recovery by the owner against the plaintiff "on account of the loss of the scows," without requiring them to find that the recovery was for their value delivered in Baltimore, the point at which they were to have been delivered under the contract which forms the basis of the present suit. By reference to the commissioner's report and the decree in admiralty on account of the loss of the scows it appears that their value, for the purpose of ascertaining the amount lost by their destruction, was arrived at by taking their value at Mobile when they left that port

It was therefore their value to the owner in Charleston and not in Baltimore that formed the basis of the recovery on account of their loss in that suit.

Furthermore the contract involved in the present case is and adding the cost of their towage to Charleston. not one between the plaintiff and the owner of the scows. It is one between the plaintiff and the defendant and it is their rights inter sese which are to be determined. If the scows were lost through the negligence of the plaintiff's servants in charge of the tug, certainly the defendant when sued for the services of the tug had a right to recoup against the plaintiff's claim any loss which it, the defendant, had suffered by reason of that negligence, apart from any rights which the owner of the scows may have had. In fact all of the prayers offered by the plaintiff either expressly or impliedly admitted the defendant's right of recoupment of its own losses caused by the destruction of the scows if the jury found that they had been wrecked and lost through plaintiff's negligence.

The rejection of all of the prayers offered in the case and the substitution in lieu of them of the single instruction of the learned Judge constituted in our judgment reversible error.

There are six exceptions to evidence in the record. The first and second were to attempts to prove that the secretary of the plaintiff company had admitted that the hawser used by the tug Britannia to tow the scows was an improper one and that their loss was due to its use. There was no error in excluding that evidence. It was only an expression of opinion by the secretary that was sought to be proven. There was no evidence that he was an expert in hawsers and no presumption that he was such arose from his position as secretary of the company.

The third exception was to the Court's refusal to permit the president of the Towing Company which owned the scows to be asked what was their value. That ruling was in our opinion erroneous. Although the defendant did not own the scows, it was under contract to tow them from Mobile to Baltimore when they were lost and if the loss was occasioned by the negligence of the plaintiff as a subcontractor when its tug was towing two of them from Charleston to Baltimore the defendant may have thereby become liable to their owner for their value and should have been permitted to ask the question.

The fourth and fifth exceptions were to questions put to Captain E.F. Green to elicit his opinion as to the sufficiency of the hawser used by the Britannia in the attempt to tow the scows when they were lost. It had already been proven that the witness had been a seafaring man for forty years and for thirty years a captain, and had had experience in towing all over the world and that he had been coast pilot and navigator of the tug Buccanneer which succeesfully towed two of the four barges from Mobile to Baltimore. That evidence qualified him to speak as an expert in towing and he should have been permitted to answer the question.

There was no error in the ruling which forms the basis of the sixth exception. It was taken to a question, asked of the mate of the tug Buccaneer, whether there was any custom or usage which determines the time of payment of the compensation under a contract of the kind proven in this case. The time of payment for services rendered under the contract was immaterial to the issue in the case. The rate of compensation was fixed by the contract and there was no point made in the case of a refusal to pay it at the proper time.

The judgment appealed from will be reversed and the case remanded for a new trial.

Judgment reversed with costs and new trial awarded.