Jones v. Hoyt

Hinman, J. When this ease was before us at a former term, (23 Conn. R., 157,) we held that the stipulation regarding the measurement of the lumber on the deck of the vessel, which was written across the face of the bill of lading, was not, under the circumstances, a condition precedent to the plaintiff’s right of recovery. It appeared to us rather as a stipulation for the benefit of the plaintiff, to enable him to retain possession of the lumber on the deck of his vessel, until his freight was paid ; and to prevent the consignee from obtaining possession, under any pretense, until he first paid the freight. If this is so, then it was obviously competent for the plaintiff to waive it, and he did waive it by measuring a part of the lumber on the wharf. But however this may be, it is quite clear that the place of measurement can be of no other importance than to enable the plaintiff to retain possession of it, or as the mere appointment of a suitable place where the plaintiff and the consignee could meet, and see to its correct measurement; and in either case, we thought it not intended to be incorporated in the contract, as a condition which must necessarily be performed, to entitle the plaintiff to demand his freight. If it was the mere appointment of a suitable place for the parties to meet, and measure the lumber, it may be considered in the light of a note, or memorandum, collateral to the contract, rather than any part of the contract itself; and as the object of it was entirely frustrated by the death of the [385] consignee, and the refusal of Lockwood, or any other agent of the defendant, to receive the lumber, or to act on his behalf in respect to it, we thought it a stipulation which had ceased to be of any importance, and its non-performance would not therefore prevent the plaintiff from recovering in this suit. Without dwelling further on this point, it is sufficient to say that we see no occasion now to change our former opinion upon it. If it be said that the construction given to this stipulation varies the contract from that set out in the first count, the obvious answer is that this objection does not apply to the second and third counts, which are both applicable to the plaintiff’s case, and either of which, by our practice, is sufficient to sustain the verdict. The rejection by the court, of parol evidence to show that the guarantee on the back of the bill of lading was given to secure the payment of freight, and to prevent a sale for this object, was proper. The direct effect of the evidence was to vary the contract, as it appeared by the bill of lading, which made the payment a condition upon which the lumber was to be delivered. This is clearly implied from the terms used in the body of the bill of lading, and is clearly and fully expressed on the margin, where it is said, “ Freight payable in specie or its equivalent, before delivery.” Of course this could not be varied by parol, without a departure from the well settled principle that parol evidence is inadmissible for the purpose of altering the legal operation of a written instrument. It is claimed that, before the action could be commenced, the plaintiff was bound to give the defendant notice of the measurement of the lumber, of the sales of it, and of the expenses of selling it. But it appears to us that the parties had equal means of information, in respect to the measurement ; and it was therefore the fault of the defendant that he did not know of it. It was contemplated that the parties should meet on the deck of the vessel, on its arrival at Ban Francisco, and jointly attend to the measurement; and if the defendant’s agent, Lockwood, had attended to his duty, this would have been done. This neglect ought not to [386] impose any additional burden, in respect to giving notice, upon the plaintiff. The appointment of a time and place when and where the parties would meet, and attend to an act of this sort, certainly appears to give the parties the means of knowledge, to as full extent as they would have of an award of arbitrators, or the act of a stranger of which a party is bound by promise to take notice, because he has the means of knowledge; and we think the fact in respect to the measurement falls within this principle. 2 Saund. R., 62, n. 4. As to notice of the proceeds of sales, after deducting expenses, that is no part of the plaintiff’s case. It comes in by way of reducing the amount which he would otherwise be entitled to recover for freight. His action is for freight earned in transporting for the defendant a cargo of lumber to San Francisco, and the defendant comes in and says he ought not to pay this amount, because the plaintiff obtained payment by a sale of the lumber after the freight was earned; and the question is, how much shall be deducted from the plaintiff’s claim on this account. It is rather for the defendant, than for the plaintiff, to show the amount of sales. It is true, in doing so, he resorts to the plaintiff’s account of these sales, but what they have to do with his right to commence his suit for freight, we do not see. And as the proceeds of the sales, and the sales themselves, stand upon the same footing, no notice of either was required. It is claimed that the charge of the court was wrong, in respect to the plaintiff’s not having kept an account. There is no doubt but that ordinarily it is the duty of agents to keep regular accounts. The court gave the defendant the benefit of this principle, and then stated to the jury the modifications of it which seemed applicable to the circumstances of the case. In cases of gross neglect of this sort, as well as in cases of gross misconduct in other respects, an agent may so conduct his business as to forfeit his whole title to compensation, and thus be made to bear the consequences of his misconduct. Story on Agency, 422, § 332, 333. He is also, in accounting, liable to have all doubtful [387] circumstances construed unfavorably to his rights and interests. Now the court threw upon the plaintiff the burden of explaining his neglect to keep accounts, and made his right to a reasonable compensation, in the course of his agency, to rest on bis ability to give a satisfactory explanation, which implied no imputation of gross carelessness, dishonesty or fraud. "We think this was correct under the circumstances. Indeed, we do not see what other course could have been taken. It is said that the charge was too vague, taken as a whole; but as we are referred to no specifications under this claim, and do not perceive any ground for the claim in the charge itself, we do not advise a new trial on this account, or on any of the points which we have had occasion to notice. In this opinion the other judges, Waite and Stores, concurred. New trial not advised.