Funcheon v. Harvey

Endicott, J. The charter party requires that the plaintiff “ shall with all convenient speed take on board ” the cargo of codfish, “ and being so loaded proceed therewith to a port either in Cuba or Porto Rico, direct, and there deliver the same.” The plaintiff alleges in his declaration that he did so, “ and proceeded direct to a port in Cuba, namely, Havana,” and that he had performed all things in the charter contained on his part to be performed. The answer denies each and every allegation of the declaration, except the payment by the defendant of a portion of 472 the freight. The further allegations and denials of the answer do not set up any defence not open under the general denial. In various forms the answer denies that the plaintiff performed that stipulation of the charter party, which required him with all convenient speed to take on board the cargo, and proceed with it to Havana direct; and that by reason of the failure of the plaintiff so to do, the codfish were wholly destroyed. One issue therefore directly raised upon the pleadings was whether the plaintiff had performed his contract in this particular; the evidence on both sides, as reported, was directed to that issue, and upon that issue the burden was upon the plaintiff. He was bound to prove that he had performed that stipulation, as well as all other stipulations of the charter party. The instruction requested should therefore have been given; it related only to that provision of the charter party. Upon the question, whether the failure to perform that stipulation (if the jury should find it was not performed) caused the injury and destruction of the goods, the defendant asked no instructions. As the presiding judge refused to give the instructions asked for, so far as related to the burden of proof, it is unnecessary to consider the rulings actually given. Exceptions sustained.