
    Renard and others v. Sampson and another.
    (Before Duer, Paine, and Emmet, J.J.)
    May 24, 25;
    June 2.
    J. 0., an agent of the defendants, on the 2d of April, 1841?, addressed a letter to the plaintiffs in which he stated that “he had chartered on their account the A 1 ship Sarah for a voyage from Baltimore to Havre.” The letter set forth in detail the terms of the contract and concluded with these words: “The ship to proceed from the port where she now is to Baltimore without delay.” It was known to the parties that she was then in the port of Boston. On the 5th of April the plaintiff and defendants executed a charter-party in due form, which stated that the ship was then lying in the port of Boston, hut contained no stipulation as to the time within which she was to proceed from that port to Baltimore. The action was upon the agreement in the letter, and the breaches alleged were that the ship was not A 1, and did not proceed without delay from Boston to Baltimore.
    
      Held, that the charter-party, although not. by express words, yet by intendment of law, covered the voyage from Boston to Baltimore, as well as from Baltimore to Havre, and bound the defendants to commence that voyage within a reasonable time.
    
      Held therefore, that the agreement in the letter was merged in the charter-party, and that parole evidence to vary the legal construction of the latter was inadmissible.
    Upon these grounds, judgment dismissing complaint affirmed with costs.
    Appeal by plaintiffs from a judgment at Special Term, dismissing the complaint.
    The action was brought to recover damages for the breach of a special agreement, relative to the chartering of the-ship Sarah on a voyage from Baltimore to Havre.
    The complaint averred that the defendants being in the possession, or having the control of the ship, or vessel, called the Sarah, then lying in the port of Boston, employed one John Ogden, of the city of New York, as their agent or broker, to effect a charter of the said vessel from some port of the TJ.S. upon some foreign or other voyage. That Ogden, as such agent, applied to the firm of Eenard & Co. of New York (the plaintiffs in the suit) to charter the said vessel, and on the 2d day of April, 1849, concluded an agreement with them, the terms of which- are contained in a letter which on that day he wrote and delivered to them. The letter is as follows:
    “ New York, April 2d, 1847.
    “Messrs. Eenard & 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 sackswheat at sixty pounds to the bushel, and rye fifty-six pounds—freight at onq 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 servt.,
    “John Ogden.”
    The complaint set forth as breaches of this agreement that the vessel at the time of the agreement was not of the class called A, Ho. 1, but that great repairs and changes were necessary to make her such, and that the said vessel did not proceed from Boston to Baltimore until or about the 21st day of the same month of April, and therefore did not so proceed without delay within the meaning of the contract; and averred that by reason of these breaches the plaintiffs had sustained great loss and damages amounting to $20,000, for which sum judgment was demanded.
    The defendants, in their answer, admitted that on the 2d of April, 1847, their agent, Ogden, communicated with them in Boston by telegraph respectin'g the terms of chartering the said vessel, and that they, the defendants, on the-same day communicated back with the said Ogden expressing their assent to, and directing him to close on, the terms proposed ; but they denied that the agreement was closed on that day, or that there was any verbal and binding agreement whatever until the 5th day of April, 1847, when a contract of affreightment or charter-party was made and executed by Renard & Co. and the defendants bearing date the 2d of April, 1847, in the words and figures following:
    “This charter-party, made and concluded upon in the City of New York, the 2d day of April, in .the year of our Lord one thousand eight hundred and forty-seven, between Messrs. Sampson and Tappan, of Boston, agents for the owners of the ship Sarah, of the burden of-tons or thereabouts, register measurement, now lying in the harbor of Boston, of the first, and Messrs. Renard & Co.,, of New York, of the second part: Witnesseth, that the said party of the first part agrees on the freighting and chartering of the whole of the said vessel (with the exception of the deck-cabin, and necessary room for the crew and storage of the provisions, sails and cables), or sufficient room for the cargo hereinafter mentioned, unto said party of second part, for a voyage from Baltimore to Havre, in France, on the terms following:
    “ The said vessel shall be" tight, staunch, strong, and every way fitted for such a voyage, and receive on board daring the aforesaid voyage the merchandise hereinafter mentioned; and no goods or merchandise shall be laden on board otherwise ' than from the said party of the second part or agent. The said party of the second part doth engage to provide and furnish to the said vessel, at Baltimore, a full cargo, of flour and grain, one-half to be flour, and the balance to be wheat and rye in sacks, not to exceed three thousand bushels of-rye, and to pay to said party of the first part or agent, for the use of said vessel during the voyage aforesaid, one dollar and seventy-five cents per barrel for flora’, and forty-sevén 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. It is agreed that the lay-days, for loading and discharging, shall be as follows : Commencing from the time the captain reports himself ready to receive or discharge cargo, twenty days at Baltimore, for loading; to discharge with dispatch ; and that for each and every day’s detention' by default of said party of second part or agent, eighty-five silver dollars per day, day by day, shall be paid by said party of second part or agent, to said party of the first part or agent; the cargo or cargoes to be received-and delivered within reach of the vessel’s tackles, at the ports of loading and discharging.
    “The vessel to be addressed to the charterers’ friends at Havre, subject to the usual commission.
    “ To the true and faithful performance of all and every of the foregoing agreements, we, the said parties, do hereby bind ourselves, our heirs, executors, administrators and assigns, each to the others, in the penal sum of eleven thousand dollars.
    “In witness, &c.
    (Signed) “ Sampson & Tappan-,
    “Renakd & Co.,”
    and the defendants insisted that by the execution of this charter-party all previous agreements, negotiations and proposals in relation to the chartering of the vessel, became of no effect, and that from that time the charter-party became and was the only existing and valid agreement between the parties in relation thereto.
    The plaintiffs in their reply admitted the execution of the charter-party, but denied that by its execution all .previous agreements, negotiations, and proposals in relation to the chartering of the vessel, became void, and the charter-party the only valid and existing agreement between the parties; and on the contrary the defendants averred that the charter-party embraced only 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 without delay, in full force.
    The pleadings, which are voluminous, contain various other allegations and denials, but none that have any relation to the real merits, or any bearing upon the questions argued and decided.
    The cause came on for trial before the Chief Justice and a jury, in May, 1852, and after the counsel for the plaintiffs had opened the case to the jury, the counsel for the defendants moved upon the pleadings that the complaint should be dismissed. The Chief Justice granted the motion, and the counsel for the plaintiffs excepted to his decision.
    The case made upon this exception was first heard at Special Term, when a new trial was denied and judgment entered for the defendants. It was now heard upon an appeal from this judgment.
    
      F. B. Cutting, for plaintiffs,
    argued for a reversal of the judgment, and insisted that
    I. The agreement that the ship Sarah should proceed from Boston, where she then was, to Baltimore without delay, was upon sufficient consideration, and was in other respects a bind- „ ing and valid obligation.
    II. The inducement for agreeing to charter the ship for a voyage to commence at Baltimore, was the representation that, although she was then in Boston, she was “ all ready for sea,” and would sail and proceed thence without delay; and consequently the plaintiffs had the right to expect, and did expect, that she would be in Baltimore within the time óf an ordinary passage, and but for the representation and the agreement that she was then in a condition to proceed, and would without delay proceed from Boston, the charter from Baltimore would not have been entered into. The plaintiffs acted upon this arrangement, and purchased and stored cargo in anticipation of the • early arrival of the vessel in Baltimore. In fact, the ship was not “ all ready for sea,” and, on the contrary, she required great repairs, so that she was detained in Boston for upwards of 18 days, and by reason of this delay the plaintiffs suffered thereby great loss in storage and expenses on parts of the cargo bought, and in the price they were obliged to pay for the residue, and in the loss of a market.
    III. The charter-party, dated in April, 1847, (not under seal) embraced and covered the voyage from Baltimore to Havre only, and did not merge or extinguish the pre-existing contract for the immediate dispatch of the vessel from Boston to- Baltimore. The contract that the ship was all" ready for sea, and should proceed from Boston to Baltimore without delay, was not discharged or released or otherwise rendered ineffectual by the contract for the voyage from Baltimore to Havre. That was a distinct, separate and independent contract for a service to commence when the agreement to proceed without delay from Boston to Baltimore had ended. The agreement to sail from Boston without delay was for something to be done anterior to the service contracted for in the charter-party, and did not contradict or vary the terms of the charter-party.—(1 Greenl. Ev. sec. 275; White et al. v. Parkin, 12 East, 578.) The contract that the vessel was ready for sea, and would sail from Boston without delay, was in writing, and of as high an order of evidence as the charter-party. The written contract to proceed from Boston without delay did not contradict, vary or add to any thing contained in the agreement for the voyage, after the vessel had arrived at Baltimore, from thence to Havre. (1 Greenl. sec. 282.) The first agreement did not relate to the same subject matter. (1 Greenl. Evid. secs. 283, 285; Ibid., sec. 284, &c.; Lewis v. Gray, 1 Mass. 297; Lapham v. Whipple, 8 Metcalf, 59; 3 Cow. & Hill Notes 1478; Ibid. 1473; Jeffrey v. Walton, 1 Stark, 267.)
    
      H. E. Davies, for the defendants,
    resisted the motion upon the following grounds.
    I. The stipulations contained in the letter of 2d April, 1847, are merged in the charter-party, and no action can be maintained thereon. 1. Such an intention is manifest from a careful examination of the letter and the charter-party; for, though the charter-party substantially follows the letter, yet there are eight or ten important variations, in which new provisions are inserted, and old ones rejected. These variations show that the parties very deliberately considered the subject. 2. The provision of the letter, that the “Sarah” should proceed to Baltimore, without delay, is simply one of these variations, and was, undoubtedly, not inserted in the charter-party by reason of the known interest of the respondents to forward the “ Sarah” as soon as possible. 3. The facts that the charter-party (being made on the 5th of April, three days after the date of the letter) was antedated to the 2d of April, and that the “Sarah” was referred to as “ now lying in the harbor of Boston,” show that the parties intended the charter-party should have a retrospective effect to the 2d April, and the time of the “ Sarah” leaving Boston. 4. But,independent of any expressed intention appearing in evidence, 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. (2 Kent’s Com., 556; Greenleaf s Ev. § 275, 276; Mumford v. McPherson, 1 Johns. 414; La Farge v. Rickert, 5 Wend. 187; Barclay & Livingston v. Hohn, decided in U. S. District Court by Judge Betts, 1852; Cowen & Hill’s Notes to Phil. Ev. 2d part, page 593, Note 295, and cases cited.)
   By the Court. Duer, J.

The question which directly arises upon the pleadings is, whether the charter-party set forth in the answer, and admitted by the reply, must not bo held to contain the whole agreement of the parties, upon the subject to which it relates, and, consequently, to have superseded entirely the prior agreement set forth in the complaint, upon the alleged breach of which alone this action is founded. Upon this ■ question we had some doubts upon the argument, but are now satisfied that the necessary legal construction of the charter-party is that, which has been stated, and that the complaint was, therefore, properly dismissed.

The argument, upon the part of the plaintiff, rests wholly upon the assertion, that the charter-party covered only the voyage from Baltimore to Havre, and embraced no stipulation whatever relative to the intermediate voyage from Boston to Baltimore. The prior agreement, that the vessel should proceed without delay from Boston to Baltimore, it was insisted, was distinct and independent, and as it was entirely consistent with the terms of the charter-party, that, so far from being superseded and extinguished, it retained all its original force. The plaintiffs had, therefore, an unquestionable right to maintain an action for its violation.

It was, however, very properly admitted by the learned counsel for the plaintiffs, that had the charter-party contained an express stipulation that the vessel, for the purpose of receiving her cargo, should proceed within a reasonable time, or without an unreasonable delay, from Boston to her port of lading, no evidence of the prior agreement, without a departure from the established rules of law, could have been received. The conclusion, it was admitted, could not then have been resisted, that the charter-party embraced the whole contract of the parties, and that the plaintiffs could maintain no action not founded upon a breach of its provisions. It is, therefore, upon the mere silence of the charter-party, the absence of any express provision relating to the voyage from Boston, that the right of the plaintiffs to maintain the action confessedly depends.

We are, however, clearly of opinion, that the inference which has been drawn from this silence of their written contract, that the parties meant to be governed in part by their prior agreement, is wholly unwarranted. The true inference is, that they were willing to abide by the construction which they knew the law would giye to their contract, and deemed it unnecessary to insert a provision, which would have expressed no more than, in its absence, the law would certainly imply. It cannot be doubted, we apprehend, that in the absence of a positive stipulation, the legal construction of a charter-party is that the voyage described shall be commenced without unreasonable delay; and the law, with some exceptions created by usage, is settled, that evidence to alter the legal construction of a written contract can no more be admitted than to contradict or vary its positive terms. The position, therefore, upon which, as has been stated, the whole case of the plaintiff is rested, we must hold to be groundless. It is not true that the charter-party was confined to the voyage from Baltimore to Havre. It was known, to the parties, and is so stated in the charter-party itself, that the ship was then lying in the harbor of Boston, and, consequently, that she must proceed from that port to Baltimore in order to commence her stipulated voyage. This necessary coasting voyage was therefore as much in the contemplation of the parties as the outward voyage to Havre, and was just as certainly within the scope and provisions of their contract; for, although not embraced by its terms, it was so', by its reasonable and legal construction. The contract imposed it as a duty upon the defendants to cause the vessel to proceed, without unnecessary delay, from Baltimore to Havre, and the performance of this duty necessarily involved that of causing her to proceed, without unnecessary delay, from Boston to Baltimore. If this delay at Boston has, in fact, occurred, the plaintiffs may be entitled to recover the damages they may have sustained in an action upon the charter-party itself, but they cannot be entitled to recover them in an action upon an ,, agreement, which, by the subsequent conclusion of the charter-party, was wholly extinguished.

To prove that the legal construction of the charter-party is that which.we have stated, we shall content ourselves with referring to the single case of McAndrew v. Adams (1 Bing. M. C. 29), which, stamped as it is with the approbation of Lord Tenterden (Abbott on Ship. 255), we regard as a decisive authority. In that case, the defendant, the master of the ship, had agreed by charter-party to go in ballast from Portsmouth to St. Michael’s in the Azores, and bring back a cargo of fruit direct to London. The charter-party was dated on the 20th of October, and contained no stipulation as to the time within which the voyage from Portsmouth should be commenced, but the court held that the absence of such a provision did not affect the right of the plaintiff, the charterer, to recover the damages it was alleged he had sustained from an unnecessary delay in the commencement of the voyage, and it appearing that it was not in fact commenced until the 6th of December, the delay, taking into consideration all the circumstances of the case, and particularly the nature of the trade, was adjudged to be unreasonable. It is evident that the voyage from Portsmouth in that case bears an exact resemblance to the voyage from Boston in the present; it was not a voyage on which any part of the freight was to be earned, but was necessary to be performed, to enable the vessel to take on board her stipulated cargo.

The proposition that the legal construction of a contract in writing, upon a question in relation to which its terms are silent, cannot be' varied by evidence of an inconsistent agreement, prior or contemporaneous, is sustained by two express decisions of our Supreme Court, which we hold ourselves bound to follow. In La Farge v. Richert (5 Wend. 187), the defendant had bound himself in writing to deliver certain portable goods to the plaintiff on or before a certain day, but no place for the delivery was mentioned in the contract.. The defence was, that by the parole agreement of the parties the goods were to be delivered on the premises of the defendant, and that on the appointed day this delivery was actually tendered. This defence was, however, overruled by the court, upon the ground 'that the construction which the law gave to the contract required the delivery to be made at the residence of the plaintiff, and that this construction could not be varied by the evidence that was offered.

In Creevy v. Holly (14 Wend. 26), the action was brought by a shipper against the owners of the vessel, for the loss of goods stored upon deck; and the claim was resisted upon the ground that, by the express understanding of the parties, the goods in question were to be carried on deck.

It was, however, held by the court, that the bill of lading, which was the proper evidence of the contract, by its legal construction, although not by its terms, imposed it as a duty upon the defendants to transport the goods under deck; and Ch. J. Kelson said, that as “ such was the judgment of law upon the contract, parole evidence was just as inadmissible to alter it as if the duty had been imposed by express terms.”

We are deeply convinced of the wisdom of the law in excluding all evidence of prior declarations or agreements of the parties when their final contract has been reduced to writing (2 Kent’s Com. 556 ; 1 Greenleaf on Ev. § 275); and we, are not at all disposed to weaken the force of the rule by creating an arbitrary exception. We think we should create such an exception by admitting the right of the plaintiffs to maintain their present action, and must therefore affirm, with costs, the judgment at special term, dismissing their complaint.  