« ΠροηγούμενηΣυνέχεια »
"2. The Osceola was detained at quarantine at the Staten Island station under the circumstances described in the master's deposition, from April 10th, 1905, at 2 p. m., until April 12th, 1905, at 9:30 a. m., a period of one day and nineteen and one-half hours. Charter hire for that period, at the rate provided in the charter party would amount to $245.81. During the detention at quarantine the steamer consumed eight tons of coal, which had been shipped in pursuance of clause 2 of the charter party, and was of the reasonable value of $26.80. The aggregate of these two amounts is $272.61.
"3. The charterer paid the ordinary pilotage of a ship entering port from sea for the services of the pilot in bringing the ship into quarantine on April 10, 1905. In consequence of the detention at quarantine, and solely by reason thereof, the charterer incurred further pilotage in bringing the ship from the quarantine station to her dock, amounting to $23.13.
“4. The parties have adjusted between themselves the items of claim and counterclaim referred to in the fifth and sixth articles of the libel, and in the sixth article of the answer herein, save only the claims of the libellant against the respondent enumerated in paragraphs 2 and 3 of this stipulation.
“5. No costs shall be recovered by either party on the final decision of this court herein."
From the master's deposition it appears that the vessel was quarantined on her way from the Barbadoes into the port of New York, during the time stated, owing to the sickness of the crew. She came in under a foul bill of health. She also had a foul bill from Para, the preceding port, to Barbadoes. The previous port was Buenos Ayres, from where she had a clean bill of health. Sickness appeared among the sailors and firemen of the crew after she left that port, which still continued after reaching New York, necessitating the shipment of a new crew, which being done, the quarantine restriction was removed, but the loss of time occurred and the question presented is whether the owner or the charterer should sustain it. The hire having been prepaid, the charterer sues to recover. The sickness probably arose through the carriage of live animals, which the charter party permitted. The provisions of the charter party, which have some bearing are:
"1. That the Owners shall provide and pay for all provisions and wages of the Captain, Officers, Engineers, Firemen, and Crew ; shall pay for the Insurance on the vessel, also for all engine-room stores, and maintain her in a thoroughly efficient state in hull and machinery for the service.
"10. That the Captain shall prosecute his voyage with the utmost despatch, and shall render all customary assistance with the Ship's Crew and Boats.
“16. That in the event of loss of time from deficiency of men or stores, breakdown of machinery, or damage preventing the working of the Vessel for more than twenty-four running hours, the payment of hire shall cease from the hour when detention or inefficiency begins until she be again in an efficient state to resume her service;
* * "18. The Ship has liberty to call at any ports in any order, to sail without Pilots, to tow and assist Vessels in distress, and to deviate for the purpose of saving life and property. The Act of God, * * * arrests and restraints of princes, rulers, and people, * * always mutually excepted, * * *.
“20. That the Owners shall have a lien upon all cargoes and all sub-freights or freights or hire due under this charter, and Charterers to have a lien on the Ship for all monies paid in advance and not earned.”
It appears that the shipment of the new crew by the owner secured the release of the vessel. Until this was done the quarantine officials would not allow her to proceed. The new men, consisting of 8 sailors and 2 firemen at once took the place of the old ones, who were
removed by the health authorities, and brought the vessel to her wharf. The ill ones, though possibly physically able, were not allowed to take the vessel from quarantine. Until the new men were put aboard she was practically helpless. The contract intended that the owner should furnish the men necessary to work her. The language of the contract is clear in that respect and the authorities, so far as they touch the question, are decidedly in favor of the charterer's contention.
In The Ethel, 8 Fed. Cas. 798, No. 4,510, there was a loss of cargo through a deficiency of crew from desertions. The charter provided that she should be “well and sufficiently manned.” It was held that it was the owner's duty to furnish the crew and keep them on board, so that the freighter would not suffer loss.
In The Eliza, 8 Fed. Cas. 459, No. 4,348, Judge Ware said (460): that the contingencies relating to a crew "the owner takes upon himself.”
Further, the charterer was deprived of the use of the vessel during the quarantine, which circumstance brought into operation the 8th clause relating to the arrest and restraint of princes, rulers and people. With reference to this matter, it is said in Carver's Carriage by Sea, § 82:
"82. 'Restraints of princes, rulers, and peoples' covers any forcible interference with the voyage or adventure at the hands of the constituted government, or ruling power of any country
whether done by it as an enemy of the state to which the ship belongs, or not. For example, orders of government prohibiting or restricting the exportation or landing of goods; quarantine regulations (f); embargoes, or restrictions on particular ships; blockades; confiscations of goods as contraband, and so forth.”
The authority there referred to in support of the text “(f)” relating to quarantine is The Progreso, 50 Fed. 835, 2 C. C. A. 45. In that case the question was whether the vessel was required to go to a quarantined port. The court said (at page 837 of 50 Fed., at page 47 of 2 C. C. A.):
"It may be taken as settled that 'detention at quarantine’ is fairly included in the scope of that clause in this charter party which has reference to the 'restraints of princes, rulers and people.' Quarantine regulations and health laws, so called, although often affecting in their operation a direct and palpable regulation of commerce, are constantly made and prescribed by states, and even by local municipal corporations, and pass everywhere, unchallenged, as the result of a legitimate exercise of that police power which resides in sovereignty. Such regulations would be worthless unless the enforcement were sure; and such certainty of enforcement is attained by virtue of the power of the people, as exhibited and exercised through their governmental agents. It follows, then, that enforced obedience to lawfully-prescribed quarantine regulations is a 'restraint of natural liberty of action devised by and proceeding from the 'people. The Progreso was therefore clearly entitled to the benefit of this exception as a valid excuse for her default in performance of those terms and conditions of her contract, which the quarantine regulations at Charleston deprived her of ability to perform."
The libellant should have a decree for $295.74, but without costs as the parties have so stipulated.
BALLANTINE V. YUNG WING.
(Circuit Court, D. Connecticut. June 25, 1906.)
1. COURTS-FEDERAL COURTS-RULE OF DECISION-STATUTE OF FRAUDS-STATE LAW.
Since the statute of frauds attacks the remedy, the lex fori governs, and the law of the state on such subject is a rule of decision in the federal courts.
[Ed. Note.-For cases in point, see vol. 13, Cent. Dig. Courts, $ 946.
State laws as rules of decision in federal courts, see Wilson v. Perrin,
11 C. C. A. 71; Hill v. Hite, 29 C. C. A. 553.] 2. FRAUDS, STATUTE OF-CONTRACT OF EMPLOYMENT—CONTRACT FOR MORE THAN A YEAR-MEMORANDUM.
Where a contract of employment which was not to be performed within a year was evidenced by certain correspondence between the parties which was vague and was declared to be "Supplemented by conversations” or aided by oral testimony to supply defects or omissions, the writing was insufficient as a memorandum to comply with the statute of frauds.
[Ed. Note. For cases in point, see vol. 23, Cent. Dig. Frauds, Statute
of, 88 240, 375.] 3. WORK AND LABOR-ACTION ON CONTRACT-QUANTUM MERUIT.
Where a complaint distinctly counted on a contract of employment which was within the statute of frauds and on a breach thereof, there could be no recovery on a quantum meruit.
[Ed. Note.—For cases in point, see vol. 50, Cent. Dig. Work and Labor,
$$ 25, 44; vol. 23, Cent. Dig. Frauds, Statute of, $$ 330, 331, 342.] 4. PLEADING-DEMURRER-CERTIFICATE OF COUNSEL-MOTION TO STRIKE.
Where a demurrer to a complaint lacked the required certificate of counsel, plaintiff's remedy was to attack such irregularity by motion to strike.
[Ed. Note.-For cases in point, see vol. 39, Cent. Dig. Pleading, $
1103.] 5. SAME-GOOD FAITH.
Where a mere glance at a demurrer to the complaint was sufficient to show that it was filed in the best of faith, a statement of counsel that
it was not interposed for delay was not required. Emil Schneeloch, for plaintiff. Robinson & Robinson, for defendant.
PLATT, District Judge. The complaint alleges, in paragraph 2, that on or about December 29, 1903, “the defendant entered into an agreement with the plaintiff whereby he hired the plaintiff to work for him as a traveling representative in the continent of Asia for at least the term of two years," and agreed to pay him certain sums of money at certain times, and that the "plaintiff agreed with defendant so to work and serve for the said time and for the said cornpensation.” That plaintiff entered upon said service, and continued therein until January 10, 1904, when defendant broke the contract and discharged the plaintiff, by reason of which plaintiff is damaged $28,500, which is as much and perhaps more than plaintiff could have claimed if the contract had been completed. This was filed February 20, 1905. On May 24, 1905, the defendant filed a motion asking that "plaintiff
be required to amend his complaint by stating whether or not the agreement alleged in paragraph 2 of the complaint is in writing, and that if in writing plaintiff be required to file a copy of the same. On June 24, 1905, plaintiff in reply stated:
"That there is no formal agreement in writing signed or executed by the parties, but that the said agreement alleged in the complaint is evidenced by certain correspondence or letters between the parties to this action, supplemented by conversations, all of which facts are within the personal knowledge of the defendant."
Thereupon the defendant, on June 27, 1905, filed a demurrer for the reasons:
“That, although it appears from said complaint that the alleged agreement was not to be performed within one year from the making thereof, yet it does not appear from said complaint that said alleged agreement, or any memorandum thereof, was made in writing and signed by the party to be charged therewith or his agent.”
In this way it is clearly contended that our Connecticut statute of frauds is a bar to the action. The section in which it appears is 1089, Revision of 1902, and the pertinent part is: "No civil action shall be maintained
upon any agreement that is not to be performed within one year from the making thereof, unless such agreement, or some memorandum thereof, be made in writing and signed by the party to be charged therewith.
The statute attacks the remedy. The lex fori governs, and it is such a law as has been declared by Congress to be a rule of decision in the federal courts. These propositions are too elementary to require citations. Under the Connecticut decisions, the statute requires the memorandum of agreement to be complete, definite, and certain in all necessary details, and not some vague writing, which to be of value must be "supplemented by conversations” or aided by oral testimony to supply defects or omissions. Nichols v. Johnson, 10 Conn. 192; Morris v. Peckham, 51 Conn. 128; Andrew V. Babcock, 63 Conn. 109, 26 Atl. 715; Devine v. Warner, 76 Conn. 229, 56 Atl. 562.
Treating the plaintiff with every liberality, the statute of frauds appears to impede his further progress. The statute is directed at the remedy, and not at the evidence which might support a remedy, if one could be made operative.
We need not discuss the effect of a demurrer upon the original complaint, for there is now coupled with it the facts which appear in the statement filed in response to the motion of May 24th, and when one looks at the entire situation as voluntarily put forward by the plaintiff it is too plain for argument that he cannot possibly maintain his action. The complaint counts clearly, and only upon a contract which is within the statute and upon a breach thereof. There is no room in it for a recovery upon a quantum meruit. The demurrer lacks a certificate of counsel, but the way to attack that irregularity was by motion to take it off the files. Such motion would not have prevailed, because a mere glance at the demurrer would satisfy the court that it was filed in the best of faith, and a statement from counsel that it was not interposed for delay would have been superfluous.
Let the demurrer be sustained, with costs.
UNION REFRIGERATOR TRANSIT CO. V. S. S. McCLURE CO.
(Circuit Court, S. D. New York. June 13, 1906.)
LIBEL-ACTION BY CORPORATION-PLEADING.
A corporation can maintain an action to recover for pecuniary loss as the result of a libelous publication precisely as an individual could in a like situation, and where the publication is libelous per se, and calculated to injuriously affect plaintiff's business, special damages need not be alleged.
[Ed. Note.-For cases in point, see vol. 32, Cent. Dig. Libel and Slander, $ 174.] On Demurrer to Complaint. Huntington, Rhinelander & Seymour, for plaintiff. Roe & McCombs and Gilbert E. Roe, for defendant.
HAZEL, District Judge. The authorities indicate that the plaintiff has a right to maintain this action without allegation of special damages. The context of the published article, read in its entirety, charges the commission of a crime and imputes wrongdoing in its trade, and is calculated to injuriously affect the commercial relations of the plaintiff. Assuming the truth of the latter statement, the cases seem to hold that a corporation may recover for pecuniary loss as a result of a libelous publication precisely as an individual could in a like situation.
The demurrer is overruled, with costs. Defendant may answer within twenty days.
In re JACOB BERRY & CO.
(District Court, S. D. New York. February, 1906.) 1. BANKRUPTCY-DISCHARGE-TRANSFER OF PROPERTY WITH INTENT TO DE
The pledging by a firm of brokers, within four months prior to their bankruptcy, of stock in their hands owned by customers to secure a loan to themselves, was not a transfer of their property with intent to hinder, delay, or defraud their creditors, within the meaning of Bankr. Act July 1, 1898, c. 541, § 14, subd. “b." 30 Stat. 550 [U. S. Comp. St. 1901, p. 3428], as amended by Act Feb. 5, 1903, c. 487, § 4, 32 Stat. 797 [U. S. Comp. St. Supp. 1905, p. 684], which debars the bankrupts from a discharge, al
though they may have had a lien on some of the stock pledged. 2. SAME-PARTNERSHIP_TRANSFER OF PROPERTY BY EMPLOYÉS.
Where employés of a partnership had general authority to obtain loans for the firm on securities, a transfer by such employés of stocks belonging to the firm by way of pledge for such a loan was the act of the partners, and, if made within four months prior to their bankruptcy, and with intent to defraud their creditors, would defeat their right to a discharge.
In Bankruptcy. On report of referee granting discharge.
In this case objections were made to the discharge of the bankrupts, who were a firm of stockbrokers in the city of New York. It was found by the referee that they had pledged as security for loans to the firm, made by the