Negus v. Simpson

Colt, J. The form in which the contract with the plaintiffs is drawn and subscribed in this case does not make it the personal obligation of the master alone. In writings of this description, the intention as gathered from the whole instrument controls. They are not governed by the strict rule, applicable only to sealed instruments and negotiable paper, which requires the signature to be in the name of the principal. Met. Con. 106. Barlow v. Congregational Society in Lee, 8 Allen, 460. The authority of the master in a foreign port to make such a contract is well established, if the article procured is reasonably necessary and proper, having regard to the condition of the ship and the voyage on which she is bound. Under the instructions of the court, the jury must have found that the chronometer was necessary, either because the one which the vessel then bad was imperfect, or because two were necessary on such a voyage The authority to supply the ship by purchase implies the powei [393] to obtain by hiring with an option to purchase. Such contracts were recognized as binding upon the owner in Bliss v. Ropes, 9 Allen, 339, and Bond v. McKinnon, Ib. 344. The ports of the several states of the Union are as to each other to be regarded, in questions like this, as foreign ports. Stearns v. Doe, 12 Gray, 485. We do not see that the declaration restricts the plaintiffs from recovering in this action all the damages which the breach of contract proved entitles them to. Nor was a demand necessary before bringing the action. When by the terms a definite time is fixed for the performance of a contract, no demand or notice is necessary before bringing an action. The point first made at the hearing, that there was no evidence that the voyage to Callao was yet ended, comes too late. It is not raised by the pleadings, and dees not appear to have been questioned at the trial. No question of law is raised by the exceptions in regard to it; and the evidence in reference to it, if any, is therefore not reported. So in reference to the ground, now first taken, that the right to purchase under the-contract may have been exercised, and that the burden is upon* the plaintiff to show that such right was not exercised, it is sufficient to say that this objection is not now open to the de^ fendant. The more important question arises upon the rule of damages-given. The contract was an agreement to hire at a certain fixed rent for a period which was to end, at the option of the hirer; at the end of the contemplated voyage, or at the expiration of fourteen months. The chronometer was then to be returned" to-the plaintiffs. The article was not returned as stipulated; and, if this were all, it is plain that the plaintiffs would be entitled to recover the rent agreed for the whole period of fourteen months, and whatever the jury might find the value to be at the expiration of that time. That value would of course be affected by the consideration that its original value had been "diminished by the period of its use, or on the other hand increased by the enhanced market value of such articles. Under the peculiar terms of this contract, it is claimed that this rule cannot prevail, [394] because the contract states the value of the article to be $240 and requires that it shall be returned in the same good order as received. Upon the whole, we do not regard these provisions as intended by the parties to be conclusive between them upon the value of the article. In a subsequent clause, the right of the master to purchase within six months at that price is given. And the value seems to be named either in reference to that right of purchase or as mere matter of description. The agreement that it shall be returned in the same good order does not provide against that deterioration which comes from ordinary use and wear. In order to give the recital of value the conclusive character contended for, it must appear from the whole contract that the parties intended to liquidate the damages. Such interpretation will not be given unless the clear intention and the subject matter require it; and is never favored by the courts. Fisk v. Gray, 11 Allen, 132. 2 Greenl. Ev. §§ 257 — 259. Such sums named are rather to be treated as penalties, so as to open the inquiry as to the actual damage suffered. It is proper, however, for the jury to take into consideration whatever evidence is afforded by the contract itself by way of admission of value by the parties, and to that extent the recital is material. As to the allowance of interest on the value of the chronometer, while it is true that it is not to be allowed in the sense in which it is added in contracts for the payment of money, yet as a measure of damages it is proper for the jury to add it. 3 Parsons on Contracts, (5th ed.) 105, note. Sedgwick on Damages, 380. The instructions of the learned judge in the matter of damages are alone erroneous. The plaintiffs are entitled to recover the stipulated hire of the chronometer for che fourteen months, with the value of the instrument at the expiration of that period, and interest on the whole amount so ascertained from the same time. Upon a contract of this description, upon a failure to return the property at the stipulated time, with no suggestion of special damage, interest on the value of the property from the time it was agreed to be delivered is a reasonable measure of damage for its detention. [395] All the other questions having been settled by the jury under rulings to which no exception can be taken, the new trial must be confined to the assessment of damages alone according to the rule here given. Exceptions of both plaintiffs and defendant sustained; and a new trial ordered on the question of damages only.