Kearney v. Kling

STONE, O. J. (The reporter will set out a copy of the contract of lease, or charter-party, by which Kling let or hired the steamboat “Lillie” to Peter Burke, and a copy of the guaranty entered into by Kearney as Burke’s surety.) The complaint contains two special coimts, and each count sets out in extenso a copy of the contract between plaintiff and Burke, and a copy of Kearney’s guaranty of Burke’s faithful performance. Burke leased the boat from Kling September 14, 1889, was to man and run her on his own account, and return her at the end of the lease, February 14, 1890, in the same condition as when received, “wear and tear excepted.” No ruling appears to have been had on the first count, and we will not notice it. The case was tried on the second count, and the only breach assigned in it was and is, “that said Burke has committed a breach of said contract or charter-party in this, that he has failed and refused to return said steamboat Lillie to plaintiff at Mobile, Alabama, after the expiration of said charter-party.” There was a demurrer to the complaint, assigning grounds; but as there [233] is no assignment of error wbicb brings up tlie ruling on tbe demurrer, we will not consider it. Defendant Kearney tlien filed eight pleas to tbe complaint. Thejfo-si was, that at tbe time of the charter tbe steamboat Lillie was not river-worthy, and was not fit for carrying-freight and passengers up and down the Mobile and Tom-bigbee rivers. Second, that in consequence of said river unworthiness, and not from any peril of the navigation, said steamboat sprung a leak, and was lost on her first voyage. Third, that by said charter-party Kling warranted that the steamboat “was in all respects fit and suitable in strength, structure and condition to carry a cargo in the river trade and defendant then negatived these qualities, and averred that on her first trip, in less than a month after the contract, from no peril of the navigation, but from her own unfitness and river-unworthiness, she sank and was lost. Fourth plea avers that, by force of the contract, plaintiff was bound ’ to see that the boat was river-worthy and in suitable condition for the service, and neglected to do so; and that in less than a month the boat was lost in consequence of her own river-unworthiness. Fifth, that the boat sunk and perished in less than a month after she was chartered, before any hire had accrued. Sixth, same as fifth, with the additional averment that the boat was lost without the fault of Burke or defendant. Seventh, that the boat was lost on her first voyage, from no peril of the river, but from inherent weakness and river-unworthiness, and that it was not in Burke’s power to raise her. Fiyhth, that the steamboat, by her own inherent weakness and river-unworthiness, was rendered incapable of being returned to plaintiff. Plaintiff demurred in gross to the first, second, third, fourth, seventh and eighth pleas of defendant, “raising the question of river-unworthiness.” He assigned grounds of demurrer: First, “because by the terms of said contract of charter-party defendant’s principal hired said boat as she was, and expressly agreed to return her to plaintiff in same condition as when received.” Second assignment is not materially different from first. Third assignment denies that. by the terms of the charter-party there is any warranty of the river-worthiness of the steamboat. Fourth assignment is substantially like the first and second. Plaintiff also demurred “to the fifth and sixth pleas, because they present no issue of law or fact.” The court overruled these demurrers, and the plaintiff then took issue on the pleas. The contract, or charter-party, contains no express guaranty, or other provision in reference to the soundness or [234] river-worthiness of tbe steamboat Lillie. If there was any guaranty, it was one implied from tbe nature of tbe contract. We have stated above that tbe only breach of Burke’s contract stipulations which is assigned in tbe second count is, that be failed and refused to restore tbe steamboat to Kling. Tbe contract, or charter-party, expressly imposes many duties on Burke. We mention only two of them. “Third: Tbe said Peter Burke is to insure tbe said ‘Lillie,’ if she can be insured, in and for tbe benefit of said August Kling, for tbe sum of fifteen hundred dollars; be, tbe said Burke, paying all tbe premiums on said insurance policy, and said policy to be delivered to said Kling within two weeks from tbe signing of this charter-party. . . “Fifth: Tbe said Peter Burke doth agree to return tbe said steamboat ‘Lillie’ to August Kling, in tbe city of Mobile, State of Alabama, upon the expiration of this charter-party, in tbe same condition as when received, ordinary wear and tear excepted. If said ‘Lillie’ should sink, the said Peter Burke is to do all in bis power to raise her.” Tbe testimony without conflict surely proved tbe truth of defendant’s fifth plea. Tbe only averment of fact set up by that plea in bar of plaintiff’s action was, “that said vessel sunk and perished before a month bad run and any payment of hire bad accrued.” On this plea plaintiff bad taken issue; and when its truth was proved, defendant was entitled to a verdict. Defendant bad in writing requested tbe court to charge tbe jury, that if they believed tbe evidence they must find for tbe defendant; and tbe court bad refused to so charge. This was excepted to, and is assigned as error. In tbe then state of tbe pleadings, this charge ought to have been given.— Crescent Brewing Co. v. Handley, 90 Ala. 486. This plea bad been demurred to by plaintiff, and tbe demurrer overruled. Tbe plea being insufficient, if defendant bad succeeded in tbe court below, and plaintiff bad appealed, we would have reversed tbe judgment of tbe Circuit Court overruling tbe demurrer to tbe fifth plea. So, if defendant bad succeeded in obtaining a verdict on tbe fifth plea, it is not impossible that plaintiff would have moved for a re-pleader. — Mudge v. Treat, 57 Ala. 1; Irion v. Lewis, 56 Ala. 190; Ga. Pac. Railway Co. v. Propst, 90 Ala. 1. In view of these principles, there possibly might be conditions in which we would bold that one error bad neutralized tbe other, and on that account refuse to reverse. To justify such possible ruling, it would be necessary for tbe record to show affirmatively and clearly that no injury was done. Tbe record before ns is not in a condition to authorize us to make that [235] statement. It is not satisfactorily shown that all the meritorious questions wbicb arise out of this transaction have been raised by the pleadings, or passed on in the court below. We state some inquiries which suggest themselves, which should be probably considered on a second trial; but we must not be considered as intimating a positive conviction in regard to them. The contract being in writing, all its provisions must be taken into the account in giving it its proper interpretation. The inquiries we suggest are: First, does the contract impose on Burke an unconditional liability to return the vessel at the expiration of the lease? Does not the clause, “If said ‘Lillié should sink, the said Peter Burke is to do all in his power to raise her,” relieve him of such absolute liability? Second, does not that clause impose on Peter Burke the duty of doing all in his power to raise the vessel if she sunk, or to show that such efforts would be fruitless, and that she could not be raised? Third, was it not Burke’s duty to insure the vessel before starting her on a voyage, or to show he could not obtain insurance on her; and are not the two weeks allowed for delivering the policy confined to the mere act of delivery, without enlarging the time for suing out the policy? Keversed and remanded.