SELECTED DECISIONS

IN LITIGATED CASES TRIED BEFORE THE

COURT OF ARBITRATION,

FROM MAY, 1879, TO MAY, 1880.

STARK W. LEWIS et al. agst. EMILIO PUIG et al.

Where, after a sale and delivery of goods, the purchasers claim that the sale was abrogated, and there is testimony on both sides of the question as to the rescission of the contract, the onus is on the purchasers to prove the rescission by preponderating evidence. If they fail to do so, the defence is not made out, and there must be an award in favor of the plaintiffs. Risks of shipment, after delivery, are risks of the purchasers.

E. L. FANCHER, Official Arbitrator.

Plaintiffs sold to the defendants, on the 27th June, 1879, through a broker, "300 barrels of potatoes, best," at $3.25 per barrel, deliverable on board the steamer "Niagara," at Pier 17, E. R. The steamer was about to sail for Havana.

When 160 barrels had been delivered, defendants informed plaintiffs that their order called for "Jackson Whites," on which account, and because it was reported at the wharf the steamer would not take more, the delivery was suspended. Afterward, in July, the remaining 140 barrels were shipped on board the steamer, the "City of Washington," bound for Havana. This latter delivery was upon an order of the defendants.

At this time no question can be made that the plaintiffs had not performed the contract on their part. The goods had been delivered as requested.

After the arrival of the "Niagara " at Havana, defendants sent their clerk, Mr. PARA, to the plaintiffs with a dispatch to the effect that the defendants' consignees at Havana refused to receive the potatoes.

The testimony of Mr. PARA and that of Mr. LEWIS, as to what occurred at that interview, is in direct conflict.

Mr. LEWIS, one of the plaintiffs, testified, that on being asked by PARA what had best be done, he replied, that as defendants' consignees had refused to receive the potatoes, they had better order them handed over to another party; that on PARA's saying they had no acquaintances there, LEWIS replied, if defendants

wished, they could send a dispatch to one of two firms named by him, with whom plaintiffs dealt. It appears that such a dispatch was then sent to one of the recommended firms, written by PARA.

PARA gives a different version, and states that LEWIS said "he had to appoint somebody in Havana to take charge of the potatoes for his account." He states that he, PARA, wrote the telegram, and put the name of "LEWIS" to it, because LEWIS told him to do so. It is plain these two gentlemen misunderstood each other. LEWIS states the conversations in one way and PARA in another. They dispute, also, as to what occurred when the account sales were received, enclosing a draft for the proceeds.

There is nothing decisive before the Arbitrator to determine which of the two disputed versions of the interviews is correct. The testimony of one seems to counterbalance that of the other. It seems to be the common case of a misunderstanding.

I think the onus is on the defendants to show by some preponderating evidence that the claim they make is true; that is, the claim to the effect that after the dispatch from Havana, the plaintiffs agreed to cancel the sale to the defendants, and assume the risk of the shipments and sales of the potatoes.

There is not evidence in the case sufficient to establish that claim on the part of the defendants.

There is testimony that the potatoes, when delivered on the steamers, were in good order, and were what is known in the market as "best," being of the sorts called "Chili-Red," and "Peerless.” As the contract in writing called for "best," the same was fulfilled as to the 160 barrels when they were delivered, and as the subsequently delivered 140 barrels were of "Jackson Whites," as required by the defendants, the contract was fulfilled as to them.

No reason, therefore, existed why the plaintiffs should assume the risk of the shipments to Havana, and there is not sufficient proof that they agreed to do so.

They should give credit for the proceeds of sale received in the Havana bill from L. MOJARRIETA & Co., and are entitled to recover for the balance of their claim.

Award accordingly.
December 5, 1879.

ELIHU PORTER agst. FRANK LYONS, CHARLES H. BUNN and ALBERT V. PORTER.

Accounts between builders and sub-contractors. What items are to be allowed the latter where changes are authorized from the plans and specifications. Legal expenses occasioned by liens against premises for dues by sub-contractors should be borne by them, and are not chargeable in their accounts with the builders.

E. L. FANCHER, Official Arbitrator.

Both parties claim a balance against each other; and both parties claim the sum of $900 deposited with Mr. MCADAM.

To determine those disputes, the accounts between the parties must be taken and stated.

The evidence in this case shows, that in the dealings between the parties, ELIHU PORTER and his son, ALBERT V. PORTER, were regarded as one and the same. The name of the son was sometimes used at the request of the father; but the work done for and payments made on account of it by LYONS and BUNN, were transactions by and with the father, so far as LYONS and BUNN are concerned.

The defendants, LYONS and BUNN, should, therefore, be debited in a general account with all such work, and should be credited with all the payments they made, whether the name of one or the other of the PORTERS was used.

In taking and stating the general account, I think the evidence requires the following items of debit to be charged against LYONS and BUNN.

As to contract relating to 513 and 515 Sixth Avenue:

Against those debits should be credited the cash payments admitted and proved.

All the debits thus allowed are admitted by the accounts of LYONS and BUNN, except the item of $50 for work on the ceiling at Pleasantville. The testimony shows that the work was done, and it does not appear that the omitted transoms, claimed as an offset, were assented to by PORTER as an offset.

In the change by which those items were omitted, there may have been an equal amount of work, that was made necessary by such change.

The defendants, LYONS and BUNN, show credits by payments which have been proved or admitted to an unquestioned amount of $10,887.69, less the sum of $1,053.93, which should be deducted, leaving $9,833.76. They also claim disputed credits to $2,274.04, making in all $12,107.80.

The above deduction of $1,053.93 is proper, for that is not a payment to the plaintiff, but is the amount of the Grace Church

account.

As to those disputed credits, I think some of them are correct, but some of them cannot be allowed as legally chargeable against the PORTERS.

Of the latter class are the following:

Those items are expenses of a litigation in lien proceedings or suits, as to which it is not clear that the PORTERS should be charged with them.

The counsel paid was the counsel of LYONS and BUNN. I think the item of $19.10 should also be disallowed; for if PORTER's time to complete his work was extended, it does not appear that he was to be subject to any charges as a condition therefor. It is common for extensions of that character to be granted, and any expenses for fire insurance would seem to be a general charge or liability of the

owner.

The residue of the disputed items, I think, are properly charged by LYONS and BUNN. One of the largest items, that of $203.09, was an actual payment to SHAW & VENN, for painting, rendered necessary by the failure of PORTER'S painters to do the work properly, and by the requirement of the architect.

The summary recapitulation of the accounts will, therefore, stand as follows:

The plaintiff, ELIHU PORTER, is to be credited, as above shown, for $12,295.77, and to be charged as above with $11,926.55, leaving an apparent balance in favor of plaintiff of $369.22. That balance very nearly corresponds with the admitted balance of $331.59, as shown on a statement made by LYONS and BUNN in December, 1878. (See Plaintiff's Ex., Nov. 17, 1879.)

But there should be deducted from that apparent balance $153.90, for the portion of the Grace Church account retained by PORTER, leaving a net balance of $215.32 in favor of plaintiff, for which he is entitled to recover in this action.

It seems the plaintiff collected the Grace Church account of Mr. JACKSON, agent of Miss WOLFE, being $1,053.93, and afterward

deposited with GEO. W. MCADAM, Esq., attorney for LYONS and BUNN, $900 of the amount, to abide the event of this arbitration.

The plaintiff, ELIHU PORTER, is entitled to $215.32 of the deposited moneys, and the defendants, LYONS and BUNN, are entitled to the residue of the same.

An award will be made accordingly.

December 15, 1879.

J. W. WILSON & Co., Agents to Bark "Manitou," agst. M. C. DE MARKOE & Co.

Construction of a charter-party. What are lay days and what are running days. Distinction between running and working days, and when holidays and Sundays are excluded.

E. L. FANCHER, Official Arbitrator.

The bark "Manitou" was chartered by the defendants at NewYork on the 20th of June, 1879, to take a cargo of lumber from Mobile, Ala., to Vera Cruz, Mexico.

The charter-party provided for the discharge of the cargo "at Vera Cruz as fast as Captain can discharge, in suitable hours and weather, when lighters can work, but not exceeding fifteen (15) running days." For every day's detention the charterers agree to pay twenty-five dollars.

BOUVIER defines "running days:" days counted in succession, without any allowance for holidays.

The distinction between "running days" and "working days," when holidays and Sundays are excluded; also, "if the weather be stormy, such as to prevent unloading the vessel," is well established, and was distinctly decided in 1843 in the Supreme Court of this State in the case of FIELD vs. CHASE, Hill & Den. p. 50.

See, also, cases cited in FIELD v8. CHASE; also, CROWELL vs. WOODRUFF, 19 An. Rep. Chamber of Commerce, Part I. p. 111; The Schooner "Felton Bent" vs. S. & W. WELSH, 21 Id. Part I. p. 155; also, Parsons on Shipping, Vol. I. p. 263.

It is admitted that the lay days of the "Manitou" commenced September 12th, and that she was delayed twenty-one days, until October 2d, which was a delay of six days beyond the time limited in the charter-party.

The plaintiffs are, therefore, entitled to demurrage to the full claim of $150.

Award accordingly.

December 20, 1879.