Opinion
June Term, 1853
A.F. Smith, for the appellants.
F. Cutting, for respondent.
The defendants' objection to the reading of the charter party was not well taken. The evidence of Webster had been taken conditionally, and the execution of the charter party was then proved without any objection being interposed. It was therefore too late to make one upon the trial. (2 Cow. Hill's Notes, 558, 1213.)
There is no force in the objection that the plaintiff can not recover without joining Webster as a coplaintiff in the action. The legal title to the ship, and the legal interest in the charter party was in the plaintiff, and he alone was entitled to maintain the action. ( Alsop v. Caines, 10 Johns. 396; Clark v. Miller, 4 Wend. 629; Clarkson v. Carter, 3 Cow. 84.) Besides, so far as the defendants are concerned in this action upon the bond, they can not raise the objection after having executed it to him personally.
The defendants insist that this is not a valid bond, for the reason that the statute requires the bond to be executed by the debtor or his agent, with such sureties as shall be approved by the officer, and that this bond has but one surety. An omission to procure more than one surety does not invalidate it. ( Johnson v. Lasene, 2 Ld. Ray. 1459; Mitchell v. Thorp, 5 Wend. 287.)
The more important question remains, the determination of which depends upon the construction to be put upon the clause in the charter party, by which the plaintiff was to receive for the freight of the coals "four dollars per chaldron, Pictou mines measure of 30 cwt." The plaintiff insists that the price was thereby fixed at four dollars for each chaldron, Picton mines measure, defined to be one of thirty hundred weight. The defendants contend that four dollars was to be paid for each chaldron according to the Pictou mines measurement, without reference to its weight. Their construction would make the expression of "30 cwt." of no significance whatever. I think it can not be put upon the contract without doing violence to the plainest rules of interpretation and the manifest intent of the parties. If possible, effect must be given to every expression in the contract. ( Chitty on Contracts, 70.) This rule is carried so far, that it is said to be the duty of courts to give to all doubtful words or expressions such an interpretation as will make them produce some effect. ( Smith on the Cons. of Stat. § 527.) The defendants' construction would require a disregard of the rule without any satisfactory reason. It is said that the best mode of expounding an instrument is by referring to the time when, and the circumstances under which it was made. ( Smith on Stat. § 512.) The contract in question was made at London. It was to transport coals from the Pictou mines at a particular price per chaldron, Pictou mines measure. It would be quite natural that Captain Webster should desire to have it known and expressed in the contract how much a chaldron Pictou mines measure was; and I agree with the court below in holding that the clause has very much the appearance of having been inserted at his suggestion, either from a knowledge of the manner in which vessels were loaded at the mines, or from a distrust of having the word chaldron qualified by the addition of Pictou mines measure, without something to define its meaning. I can not but think the expression is a material one, and that full force must be given to it. The plaintiff therefore was right in claiming pay for the whole number of chaldrons of thirty hundred weight, and as Tremlett's agent did not furnish the approved acceptance, he was not bound to wait thirty days before bringing his action. The judgment of the superior court should be affirmed.
RUGGLES, Ch. J., MORSE, TAGGART and WILLARD, JJ., concurred with Judge Mason.
GARDINER, JEWETT and JOHNSON, JJ., were in favor of a reversal of the judgment.
Judgment affirmed.