G. Corral & Co. v. Eclipse Towboat Co.

The opinion of the Court was delivered by Pociié, J. Defendants prosecute this appeal from a judgment condemning them to pay to plaintiff $4329.88 for an alleged violation of a contract, by which they had bound themselves to tow to the city of New Orleans from the Gulf of Mexico and back again, for a term of one year from July 11, 1882, all the vessels which would come to this port on consignment to plaintiffs, at a stipulated price per tonnage for the round trip. The amount claimed by plaintiffs and allowed by the District Court consists of the sum of $40, spent by them as counsel fees in some litigation growing out of defendant’s alleged violation of their contract, .and of the difference in towage dues paid by them on vessels consigned to plaintiffs during the year, and the price of such dues as fixed by the contract. Among other defences, tho defendant company urges that under ■their pleadings plaintiffs have shown no personal rights to claim and •recover the amount which forms the judgment of the District Court. In our opinion that defence should have prevailed, and the judgment •of the lower court is therefore erroneous. The evidence, which consists,in the main, of plaintiffs’ own testimony, shows to our entire satisfaction that the various amounts winch form the basis of their •demand were paid directly by the owners or charterers of the vessels which were consigned to plaintiffs during the time covered by the contract, and that therefore they incurred no losses on that score through. the alleged violation of the contract by the defendant company. Plaintiffs have utterly failed to allege in their petition, or to intimate in their testimony, that they were pressing this claim as agents, or for tlie use and benefit of the owners or charterers of the respective [805] vessels, on which the burden of the alleged overcharges fell and to whom they are due, if recoverable at all. In his testimony the senior member of plaintiffs’ firm distinctly states that he actually or personally lost nothing through the transaction which ho declares upon, and that his only losses consist in the loss of business on account of his failure to secure cheap towage on vessels which would in that event have been consigned to him, and whose owners were thereby deterred from consigning to this port, under the control of his firm. His testimony is clear on that point, and proves beyond a doubt that he lias no personal cause of action in claiming the various amounts-which form the basis of his demand. Hence plaintiffs cannot maintain their present action, although in a proper action, on proper showing, they may be legally entitled to recover such damages as they may show in consequence of decrease of business as a result of the defendant^ alleged violation of its contract, and to that end we shall reserve their rights under our decree. It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed; and it is now ordered that plaintiffs’ demand be rejected and that their action be dismissed as in the case of non-suit, at their costs in both courts. Judgment reversed.