Renard and others against Sampson and others

Renard and others against Sampson and others. A written contract, executed between parties not in performance of a distinct and separate provision of prior negotiations and agreements between them, but covering in its terms or legal effect the whole subject matter thereof, extinguishes and supersedes all such prior negotiations and agreements. Accordingly where the plaintiffs, on the 2d of April, agreed with the agent of the defendants to charter a vessel then lying at Boston, for a voyage from Baltimore to Havre; and thp agent then delivered to the plaintiffs a memorandum signed by him, stating that he had chartered to them the vessel for the voyage, and after detailing the terms of the contract saying, that she should proceed from Boston to Baltimore without delay; and on the 5th of April, a charter-party of the vessel for the voyage from Baltimore to Havre) dated the 2d, was executed by the plaintiffs and defendants, which stated that the vessel was at Boston, but contained no stipulation as to when she should leave there or be at Baltimore; in an action brought upon the agreement contained in the memorandum that the vessel should proceed from Boston to Baltimore without delay, Held, that this agreement was merged in the charter-party, and that the rights and duties of the parties depended upon its terms or legal intendment. The class of cases in which a prior verbal or written agreement may coexist with a subsequent written one relating to the same subject, discussed and pointed out by Denio, J. Action in the superior court of the city of New-York, to recover upon a special agreement relative to the chartering of a vessel. The complaint alleged that the defendants being in the possession or having the control of a Vessel called the Sarah, then lying in the port of Boston, employed one Ogden of New-York as their broker to effect her charter for a voyage; that Ogden applied to the plaintiffs, and that on the 2d of April, 1847, an agreement, as well for the chartering of the vessel for a voyage from Baltimore to Havre, as that she should proceed from Boston to Baltimore without delay, was concluded between the plaintiffs and Ogden as agent of the defendants, the terms of which were contained in a letter written and delivered by Ogden to the plaintiffs on that day. The letter was set out in the complaint, as follows: “ New-York, April 2d, 1847. “ Messrs. Renard & Co., “ Gent.—I have chartered for .your account the A, 1, ship Sarah for a voyage from Baltimore to Havre; cargo to consist of one-half flour and one-half wheat, with the privilege of- sacks; wheat at sixty pounds to the bushel, and rye fifty-six pounds; freight at one dollar and seventy-five cents per bbl., and grain at forty-seven cents per bushel, with five per cent primage; the vessel to go consigned to your friends in Havre, with the usual commissions; twenty lay days to be allowed in Baltimore for loading ; should any alteration be required in Baltimore, in altering the quantity of grain or flour, to be arranged between the captain and your friends ; freight to be paid at the rate of five francs and twenty-five centimes to the dollar.; the ship to proceed from the port where she now is to Baltimore without delay. “ Your ob’t serv’t, “John Ogden.” The complaint alleged as breaches of this agreement that the vessel was not of the class A, No. 1, but that repairs and changes were necessary to make her such, and that she did not proceed from Boston to Baltimore without delay, nor until about the 21st of April; and averred that by reason of the delay the plaintiffs sustained loss and damages to.a large amount, for which judgment was demanded. The defendants by their answer admitted that they employed Ogden to effect a charter of the vessel, and that he, on the 2d of April, applied to the plaintiffs, and then wrote and delivered to them the letter set out in-the complaint, but they denied that any valid contract for the vessel was closed or consummated until the 5th of April; that on the last named day a contract of affreightment or charter-parry was made between and executed by the respective parties in person, which was set out in the answer. (This contract is set out at length in 2 Duer, 285, where the decision of the superior court is reported.) This contract is dated the 2d of April, and by it the defendants chartered the ship Sarah, then “ lying in the harbor of Boston,” to the plaintiffs “ for a voyage from Baltimore to Havre.” It in terms provided that the vessel should be staunch and in every way fitted for the voyage, and should receive on board the cargo therein mentioned; that the plaintiffs should furnish to the vessel at Baltimore a full cargo, the one-half to be flour and the residue to be wheat and lye in sacks, the rye not to exceed three thousand bushels; and pay for the use of the vessel during the said voyage, one dollar and seventy-five cents per barrel for flour, and forty-seven cents per bushel of 60 lbs. of wheat and rye, with five per cent primage, payable on the discharge of the cargo at the rate of five and a quarter francs to the dollar; that the lay days for loading should be as follows: “ Commencing from the time the captain reported himself ready to receive or discharge cargo, twenty days at Baltimore for loading, and to discharge with dispatch; and that for each and every day’s detention by default of the plaintiffs or their agent” eighty-five dollars should be paid. The contract further provided, that the cargo should be received and delivered within reach of the vessel’s tackle, and that she should be consigned to the friends of the plaintiffs at Havre. There was nothing expressed in the contract as to when the vessel should leave Boston or reach Baltimore. In the answer, it was insisted that by the execution of this charter-party, all previous agreements and negotiations in relation to the chartering of the vessel became of no effect; and that it became, and was the only valid and existing agreement in relation to the vessel and the chartering of her, and that the rights and obligations of the parties must be determined by it. The plaintiffs by their reply admitted that the charter-party set out in the answer was executed on the 5th of April, but denied that all previous agreements and negotiations between the parties in relation to chartering the vessel became merged in it, and alleged and insisted that the charterparty related only to so much of the previous agreement as concerned the vessel after she should arrive at Baltimore, leaving the stipulation in the letter of Ogden, that the vessel should proceed to Baltimore, in full force. The cause came on for trial before Chief Justice Oakley and a jury, and after the counsel for the plaintiffs opened the case to the jury, the counsel for the defendants moved upon the pleadings that the complaint be dismissed. The court granted the motion and the plaintiffs excepted ; and judgment, dismissing the complaint, was entered. This judgment was affirmed by the superior court at a general term. The plaintiffs appealed to this court. George F. Betts, for the appellants. I. The defendants have not fully complied with the agreement contained in the letter of April 2d. The execution of the charter-party was only in part performance of that agreement. (Gerrish v. Washburn, 9 Pick., 338; Hall v. Maccubin, 6 Gill & J., 107; Kelsey v. Dickson, 2 Blackf., 236; S. C., 3 Blackf., 189; McCulloch v. Girard, 4 Wash. C. C. R., 289.) The agreement is of as high a nature as the charter-party ; both are in writing; neither is under seal. The question in this case is not, therefore, whether a written contract can be varied by parol evidence, but whether an existing contract has been in fact released by any subsequent agreement of the parties. (Bradford v. Bank of Tennessee, 13 How., 57.) II. The charter-party does not extinguish the agreement made April 2d, that the “ Sarah” should proceed to Baltimore without delay. 1. That agreement refers to a voyage to be performed before the charter-party should attach. (White v. Parkin, 12 East, 578, 584.) 2. That agreement is entirely consistent with, and independent of all the provisions of the charter-party. (Batterman v. Pierce, 3 Hill, 171; Potter v. Hopkins, 25 Wend., 417.) Taken in connection with the charter-party, it applies the provisions of the charter to the subject of it, i. e., the voyage from Baltimore to Havre. (Almgren v. Dutilh, 1 Seld., 28.) H. E. Davies, for the respondents. I. The stipulations contained in the letter of the 2d of April are merged in the charter-party, and no action can be maintained thereon. 1. The voyage from Boston to Baltimore was part of the voyage covered by the charter-party, and that is the legal construction of the charter-party. (M'Andrews v. Adams, 1 Bingh. N. C., 29; Abbot on Ships, 255, 5 Am. ed., 331.) 2. The court is bound, as matter of law to treat the charter-party as containing the whole contract, and as merging all the prior negotiations between the parties, and its legal construction cannot be varied by evidence of an inconsistent agreement, prior or contemporaneous. (2 Kent’s Com., 556; Greenl. Ev., §§ 275, 276; Mumford v. McPherson, 1 Johns., 414; La Farge v. Rickert, 5 Wend., 187; Creers v. Hobby, 14 Wend., 26; Barclay & Livingston v. Holm, decided in U. S. court by Judge Betts, 1852; Cowen & Hill’s Notes to Phil. Ev., 2d part, p. 593, n. 295, and cases cited; West. R. R. Cor. v. Babcock, 6 Met., 353; Adams v. Wilson, 12 Met., 138; Gard. Man. Cor. v. Heald, 5 Me. R., 381.) [MAJORITY — Dean, J. Denio, J.] Dean, J. The plaintiffs chartered of the defendants the ship Sarah for a voyage from Baltimore to Havre. At the time of the first negotiation between the parties, and also when the charter-party was executed, the Sarah was in the port of Boston. This action is to recover damages sustained by the plaintiffs because the ship did not proceed without delay from Boston to Baltimore, where she was to receive her cargo for Havre. The action is not on the charter-party, but on an alleged agreement contained in a letter written during the negotiations which ended in the contract for the voyage. The only question which need be decided in this case is, whether all negotiations in reference to the contract to charter were not merged in the written agreement. The superior court held that they were; and in this decision I think they were right. It has been too long settled to be now disturbed or even questioned, that a written contract, with or without seal, merges all prior and contemporaneous negotiations in reference to the same subject, and consequently that a separate action cannot be brought upon any such prior or contemporaneous statements. This rule is general in its application and embraces contracts in reference to ships as well as all other subjects. Had the plaintiffs sued on the implied agreement of the charter-party, that the voyage from Boston to Baltimore should be made without unreasonable delay, he might perhaps have sustained his action; but that need not now be decided, nor is it necessary to discuss all the questions raised in the court below, as the one already mentioned disposes of the whole case. The judgment should be affirmed. Denio, J. The charter-party was a substitute for the stipulations contained in the previous communications between the plaintiffs and the defendants’ agent. That instrument was intended to, and in its nature did cover the whole subject of those communications; and as soon as it was signed it superseded all that had gone before, and constituted the only contract between the parties for the hiring by the plaintiffs of the defendants’ vessel. There is a class of cases where a subsequent written agreement may coexist with a prior verbal or written one relating to the same subject. This is the rule where the latter agreement is in execution of some distinct and separable provision of the earlier one, and also where, though made at different times, they arc both intended to take effect at the same instant and to constitute different parts of the same arrangement. (McCullock v. Girard, 4 Wash. C. C. R., 289; Mowatt v. Lord Londesborough, 3 Ellis & B., 307.) This case might well have fallen within that rule if the voyage from Boston to Baltimore had been a substantial portion of the arrange ment between,those parties, distinct from the one from Bal tiraore to Havre, as the plaintiffs’ counsel contends it was. In such a case it would have been reasonable to hold that the charter-party, which is limited to a contract for the latter voyage, left untouched that portion of the agreement between Ogden and the plaintiffs which concerned the transit of the vessel to Baltimore. But the voyage from Boston to Baltimore was a subject of no interest to the plaintiffs, except as preliminary to having the vessel in readiness at» the latter place to commence the voyage to Europe. If it was material to the plaintiffs to have a positive or proxi mate time fixed upon for the vessel to be prepared to receive her cargo at Baltimore, as no doubt it was, a stipulation pointing to that object was part and parcel of the contract for the voyage from Baltimore to Havre. A provision that she should sail from Boston immediately, or at a given day, for the purpose of being at Baltimore for the plaintiffs’ use, would not differ in respect to its connection with the principal voyage, from one fixing a day within which she was to be at the port of Baltimore ready to receive the plaintiffs’ cargo. Either of these stipulations would con stitute a teim of the main contract, but could not be regarded as a distinct subject. If a day had been agreed upon in the correspondence between the broker and the plaintiffs for the vessel to be at Baltimore, but when the formal contract came to be executed that circumstance had been omitted, the inference which the law would make, would be that the plaintiffs had waived" that part of the agreement, and that both parties had elected to repose upon lhe legal construction of a contract not containing an express stipulation as to that particular. In the absence of an express provision, the law requires the owner of the ship to proceed with reasonable diligence. (McAndrew v. Adams, 1 Bing. N. C., 29.) If there was a failure to use such diligence in this case, the plaintiffs were entitled to their damages for the wrong thus done them ; but the present action was not adapted to such a case, the plaintiffs relying solely upon an express contract of the broker to sail immediately from Boston, and not noticing in any way the charter-party, which was the real agreement between the parties. It is argued by the plaintiffs’ counsel that the case is not within the rule which forbids the introduction of parol evidence to vary the terms of a written contract, because, as it is insisted, the antecedent agreement was in writing as well as the charter-party itself. But the defendants could not be charged upon the contract signed by Ogden, except by the introduction of oral evidence to prove his authority to act for the defendants. Instead of relying upon that, the plaintiffs elected to take the express written agree ment of the defendants. To make it clear that this was a substitute for what had passed between the plaintiffs and the broker, it was made to bear date on the day on which the broker’s letter was written, though it was not executed until some days afterwards. It repeated the stipulations in the broker’s letter, so far as it was intended to adopt them. It was a complete contract in itself, and embraced all the particulars essential to make a perfect agreement for the charter "of the defendants’ vessel. I am satisfied that it contains all the available stipulations existing between the parties respecting the chartering of that vessel. I am of opinion, therefore, that the judgment of the supreme court is right and should be affirmed. Judgment accordingly.