
    John A. Graves, Respondent, v. The Miami Steamship Co., Appellant.
    (Supreme Court, Appellate Term,
    November, 1899.)
    1. Common carriers — Ocean freight time contract made by a soliciting agent in his own name — ¡Ratification by general agent.
    A contract to carry ocean freight at a fixed rate for six months, executed in his own name by an agent authorized to solicit freight, and negotiated by him as a settlement of a prior dispute between the consignor and the carrier, is, when ratified by the general freight agent of the carrier, binding upon it.
    
      2. Same — Invalid, excuses for nonperformance — War with Spain — Charter, to others, of vessels.
    A contract to carry freight to a domestic port was not abrogated by the declaration of war between the United States and Spain; and consequently it is no answer, to a breach of said contract, for the carrier to allege that its sailings were discontinued because of “ lack of safety for the vessels ”, and because the carrier had “ disposed of its ships by charter”, it appearing that such disposition was both voluntary and profitable.
    Appeal from a judgment in favor of the plaintiff, rendered in the Municipal Court of the City of Hew York, first district, borough of Manhattan.
    Wheeler & Cortis (John S. Woodruff and Charles S. Haight, of counsel), for appellant.
    H. H. Childers (A. S. Gilbert and Julius M. Mayer, of counsel), for respondent.
   Leyentritt, J.

This action was brought for the breach of a contract for the shipment of freight.

The contract was signed on behalf of the defendant in the individual name of one R. H. Vaughan, its soliciting agent, and was intended to bind the defendant to carry from Galveston to Hew York all the freight shipped by the plaintiff between March 2, 1898, and September 10, 1898, at a maximum freight rate of ten cents per hundred pounds. It is recited in the contract that a difference had arisen between the parties with reference to the performance by the defendant of the terms of a former contract between them, and that, in settlement, the contract here in question had been made and a money consideration paid. For a period of about one month the defendant accepted and carried all the freight tendered by the plaintiff. Then it notified him that it would discontinue the carriage of freight, and thereafter no freight was transported. The plaintiff was compelled to ship his goods by another line of steamers at a rate materially in increase of that provided for in the contract with the defendant. He had recovered below, for the amount of the difference between the two rates, for- the unexpired term of the contract.

The defendant sought to defeat his recovery on the grounds that Vaughan, who signed the contract in his own name, was not authorized to bind the company to such an agreement; and that the defendant discontinued running its line of vessels on account of the war with Spain. On the question of authority the defendant concedes that Vaughan was its soliciting freight agent, but denies his power to bind it to time contracts. It appears, however, that Vaughan had, on behalf of the defendant, negotiated the settlement arising out of the previous contract, that he had been distinctly authorized to do so, and that the defendant had recognized the settlement and had paid the amount stipulated, which is mentioned as part consideration in the new contract. Vaughan was acting under the instructions of the defendant’s general agent for southbound freight, to whom the present contract was duly communicated. For one month the contract was performed by both parties. While Vaughan may, in fact, have been merely a special agent with restricted powers, yet the circumstances of this case justified the plaintiff in regarding him as the general agent for that particular branch of the business. Cox v. Albany Brewing Co., 56 Hun, 489. Private instructions to Vaughan, not communicated to the plaintiff and not known to the general public, cannot charge the plaintiff with notice. It would seem to be the usual incident of the powers of one, designated to solicit freight, to contract for deliveries in the near future. We are of the opinion that the general agent for southbound freight, to whom Vaughan communicated the contract, and who, according to the testimony, left the settlement of the old and the negotiation of the new contract entirely in Vaughan’s charge, was clothed with all the authority the latter exercised. Whether we regard the disputed contract as made by him through Vaughan, or after execution ratified by his act, pursuant to which it was in part performed, it would be equally binding upon the defendant. Benesch v. John Hancock Mutual Life Ins. Co., 34 N. Y. St. Repr. 17; Smith v. Robinson Bros. Lumber Co., 88 Hun, 148.

The second defense interposed is equally without merit. The answer alleged that, shortly after the execution of the contract, war was declared between the United States and Spain, and that, on account of the danger of loss of its steamers through seizure by the naval forces of Spain, the operation of its line was discontinued; and that, immediately after war was declared, its steamers were purchased or chartered for the navy of the -Hnited States government, thus rendering further sailings impossible. The only evidence presented by the defendant on this subject is the statement of one of its agents that, bec&use of lack of safety for the vessels,” sailings were discontinued on account of the Avar between Spain and the United States,” and that the defendant; “ disposed of its ships by charter.” There is, also, uncontradicted proof that Vaughan admitted that the defendant had sold one of its steamers to the United States goAmrument at a profit of $143,000. The contract of affreightment was not dissolved by the declaration of war, inasmuch as the port of destination ivas domestic. It is only where hostilities exist, between the country to Avhieh the vessel belongs and the country for which it is bound, that such result ensues. 7 Am. & Eng. Ency. of Law (2d ed.), 284; The Ship Francis, 1 Gall. 445; Brown v. Delano, 12 Mass. 370. Even had international complications rendered transportation more hazardous, the contract avouM have been unimpaired and the defendant Avould have been compelled to submit to the increased peril.. Abbott’s LaAv of Merchant Shipping (13th ed.), 754. Performance of the contract might have been excused had the United States government, in the exercise of the power of eminent domain, seized the defendant’s vessels. There is, hoAvever, no intimation to that effect in the record. On the contrary, it is clear that there was a voluntary disposition. Governmental compulsion might have excused performance; the voluntary act cannot.

The judgment should be affirmed.

Freedman, P. J., and MaoLean, J., concur.

Judgment affirmed, Avith costs to respondent.  