Holloway v. McNear

Foote, C. This action was instituted by Holloway, who was the assignee of the rights and claims of Hughes & Co., a partnership, such rights and claims accruing under a certain charter-party executed for McNear by his agents, Iredale and Son, and by Hughes & Co. for themselves. Under that instrument the defendant chartered a certain ship, the Lord Cairns, to transport a cargo to Europe from San Francisco. When the ship was ready to receive her cargo she was offered to the defendant, who refused to take her; and she was then chartered to other parties at a lower rate for freightage than- the defendant contracted for. This action was brought to recover damages for the non-performance of the con-' tract under the charter-party. The defendant, who is the appellant heje, claimed, by way. of defense, that his [156]agents had no authority from him to make the contract as they did. He alleges that his telegram to them in cipher, conveying the terms upon which he was willing to enter into the agreement or charter-party, was not followed by his agents; that they stipulated for a less amount of commissions to him than he authorized. The language of the telegram was this (received August' 8, 1884): “Lord Cairns you may charter if address commissions two and one half per cent, and charter commissions here five per cent.” The answer to that, by his agents was: “Lord Cairns we have chartered for your account.”

The clause in the charter-party relating to the matter of commissions is in this language: “Vessel to be consigned (inward only) at port of discharge to charterer’s agent, to whom a commission of two and one half (2£) per cent on amount of freight is to be paid. .... A, commission of five per cent on this charter-party shall be paid by the vessel after completing the loading, ship lost or not lost, at customary rate of exchange, in United States gold coin, to charterers.” It is claimed that although this language on its face gives two and one half per cent to the charterer’s agents, and five per cent to the charterer, that nevertheless, by custom and usage, the language of the last sentence of the contract above mentioned,.meant something else; that is, that although, by its terms, five per cent as commissions was to go to the charterer, that in reality, interpreting the language in the light of custom and usage, it did not mean what it purported to mean. We are thus asked to construe the language of a written instrument contrary to its plain and manifest meaning, giving to the words their ordinary signification, and to read it according to a usage of trade solely. This the court below refused to do, and informed the jury that by the terms of the instrument the defendant and charterer was to receive the amount of commissions which his telegram called for,