Armistead v. Shreveport & Red River Valley Railway Co.

The opinion of the court was delivered by Provosty, J. The plaintiff, owner of a small cotton seed oil mill,, chartered -a steamboat for the purpose of transporting to his mill a lot of cotton" seed he had accumulated on the bank of Lake Bisteneau; also for the purpose of transporting from his mill to certain customers of his mill some cotton seed meal, the product of his mill; and,, incidentally, for the purpose of carrying some freight for the public. Also he thought to turn an honest penny on the- trip by having on the-boat some fruit and liquors for sale. For the privilege of selling these liquors and fruit he paid an internal revenue license of $9.50. The bridge of defendant across Loggy Bayou barred the passage-of the boat, and put an end to the voyage, to plaintiff’s alleged damages, as follows: 120 tons -of cotton seed at $7.00 per ton......................$840 00- 2000 seed sacks at 10 cents............................... 200 00- Fruits and liquors ........................................ 125 00’ Revenue license ......................................... 9 50- Loss of profits on same .................................. 200 00 Miscellaneous freight .................................... 100 00' Inconvenience and trouble ................................... 100 00’ Net profits on the manufacture of the seed................ 428 00 Damages by failure to get other seed...................... 500 00' Loss -of profits on 100 tons of meal........................ 225 00* Loss of profits on hulls ................................... 47 75 The defendant does not seriously deny its responsibility; but pleads-a compromise; and strenuously contests the amount of the damages. [173] The compromise stipulated the payment of a certain sum to plaintiff in full of .all- claims; and stipulated, further, as! follows: “The party of the second part * * * hereby bind and obligate themselves to have a steamboat at the landing of said Armistead” (the plaintiff) “at Cabin Point on Eed Eiver on or before March 27th, 1899, to receive a cargo or such part thereof as said Armistead may desire to transport, and to transport the same on said boat up Loggy Bayou and through Lake Bisteneau as high up ,as Fort Bolivar m the .event a sufficient'depth of water can be found oni said route to permit the passage of said boat" The clause italicized here is italicized also in the instrument of compromise. It was inserted in view of the fact that the water in Loggy Bayou and Lake Bisteneau might at any time fall below the navigation stage. In the event of such fall plaintiff would have to take defendant’s will to make the trip in place of the deed of having made it. Under these circumstances, plaintiff' was justified in treating a two days delay in the tendering of the boat as having vacated the compromise. There is also evidence to the effect that this and the previous delay had caused the orders for the cotton seed meal to be countermanded. Time, here, was the essence of the contract. Davidson vs. Von Lingan, 113 U. S. 40. Moreover, plaintiff was under no obligation to furnish a cargo, and, therefore, his refusal to deliver his meal for transportation did not •excuse the boat from proceeding on its voyage in fulfillment of the compromise. The boat was “to receive a cargo or such part thereof as the said Armistead may desire to transport.” If Armistead desired to transport no cargo, all the boat had to do was to proceed on its voyage to transport the seed. The defendant violated the compromise, and then voluntarily can-celled it; and is, therefore, not in a position to plead it in bar of plaintiff’s action. We proceed to take up the items of damage in regular order. The seed was left to rot and to be appropriated iby who might choose to take them. The responsibility for this, the plaintiff and the defendant cast each upon the other. The evidence shows that there was reasonable certainty of the navigation holding out for one trip of the boat, and we think defendant should have made this trip. It is idle to say that plaintiff might have saved the seed by means of sheds, [174] fences, or land transportation, or what not. The business way of going at saving the seed was to go and get them in a boat; and after barring plaintiff from doing this defendant should itself have done iR since this boat was to hand for the purpose. Sutherland on Damages, Vol. 1, pp. 150, 151; 2nd Ed., p. 187, Sec. 88. The boat could have-carried and saved 86 to 90 tons, worth $7.00 xoer ton. Defendant is responsible for this; less $1.80 per ton, which plaintiff might have realized on the seed by transporting them by land to- Shreveport. E-or the remainder of the seed we do not hold the defendant responsible, as it does not appear that the boat could have counted, with reasonable certainty, -on having navigation for a second trip. As to this remainder of the seed we hold plaintiff to the obligation under which he was to-use every reasonable endeavor to save the seed, with the right to charge defendant with the expense of the salvage. So holding him,, we can allow no more than the probable expense of the salvage. Adopting, for want of a better, the lower court’s estimate of this expense, we fix this salvage at 50 cents per ton, or $7.00 in all. We can allow nothing for the sacks; they could have been saved at an insignificant expense, and plaintiff was clearly under the obligation thus to save them, and they are probably included in the estimated value -of the seed. As to the “fruits and liquors” and “inconvenience and trouble,” we-adopt the estimate of the judge a quo and fix the damage at $100.00. By the act of the defendant the plaintiff was deprived of an opportunity to utilize his revenue license, which had cost $9.50. We think, this amount should be allowed. We disallow the item “loss of profits on same $200.” These profits-are not proved with sufficient certainty. For the same reason, we disallow the item “miscellaneous freight $100,” and the item “damages by failure to get other seed $500.” We do not agree with the learned district judge in his denial to-plaintiff of the profits expected to be made on the milling of the seied. The defendant cannot deny that but for the obstructing bridge plaintiff' would have had the milling of the seed- and that this operation would' have yielded profit. The seed had been procured for the purpose of realizing this profit; and this profit thus cut off by his wrong, defendant must make good. Sutherland on Damages, 2nd Ed., p. 132, Sec, 59; p. 157, Note 1, Sec. 70. We fix; this profit at $2.75 per ton, or $275.00. [175] "We adopt the estimate of the judge a, quo on the two last items,, “loss of profits on 100 tons of meal $75.00,” and “loss of profits on-hulls $6.00.” Becapitulation. 86 tons of seed at $5.20 ................................ $447 20 Salvage of 14 tons of seed at 50 cents..................... 7 00 Fruit and liquors, inconvenience and trouble.............. 100 00 Bevenue license ........................................ 9 50' Profit on manufacture of seed........................... 275 00 Loss on cotton seed meal................................. 75 00 Loss ion hulls........................................... 6 00' $919 70 It is therefore ordered, adjudged and decreed, that the judgment appealed from be increased to the amount of $919.70, and that as thus-amended it be affirmed with costs in both courts.