Opinion
12-15-1906
RAMSEY v. PERTH AMBOY SHIPBUILDING & ENGINEERING CO.
John B. Vreeland, for the United States. Adrian Lyon and Frank P. McDermott, for receiver.
Suit by Allen L. Ramsey against the Perth Amboy Shipbuilding & Engineering Company. Appeal from disallowance of claim by receiver of the shipbuilding company. Reversed.
John B. Vreeland, for the United States. Adrian Lyon and Frank P. McDermott, for receiver.
STEVENS, V. C. This is an appeal from the disallowance by the receiver of the shipbuilding company of a claim presented by the United States. The claim is one for damages for breach of a contract by the shipbuilding company to construct two vessels for the price of $105,000. After 20 per cent. of the work of construction had been done in the case of one of the vessels, and 12 1/2 per cent in the case of the other, the company failed. The government readvertised. The lowest bid for two similar boats was $154,670, and these boats were built at that price. The damages demanded are the difference between this sum and the sum for which the shipbuilding company agreed to build.
The first contention is that the company was disabled from performing because the government did not make those payments on account to which it was entitled. The contract provided for "payment to be made at such times and in such amounts as the officer in charge of the work might elect" The effort was to vary this contract by evidence to the effect that government officers stated, when attention was called to this clause, just before signing, that payments could be expected about every 30 days. No payments, in fact, were made. The statement, if proved, is obviously at variance with the terms of the writing and for that reason inadmissible. Naumberg v. Young, 44 N. J. Law, 331, 43 Am. Rep. 380; Hallenbeck v. Chapman, 72 N. J. Law, 202, 63 Atl. 498. It is none the less so because it is put in as evidence of custom.
It is secondly contended that the United States took too much time to approve the plans for portions of the work from time to time submitted, and so prevented the work from being done. These plans were prepared by the shipbuilding company as the work progressed, and submitted to the quartermaster's department in New York. They were frequently returned, with modifications and corrections. The company prepared new plans and blue prints with these modifications and corrections embodied in them. They were again submitted to the quartermaster's department, and, if satisfactory to it, sent to the American Bureau of Shipping for approval by that bureau, the specifications so providing. After examination by this latter body they were returned to the quartermaster's department which returned them to the shipbuilding company. This took time. Mr. Master, the receiver's witness, said, on his direct examination, that the plans were very much delayed, but his cross-examination, taken in connection with the written correspondence and with the evidence of Mr. Scott, tends to show that the government acted with reasonable diligence. It is perfectly evident on the testimony of Mr. Master himself that the price at which it was agreed to build was too low, and that it would have been impossible for the company, with the force of men at its disposal, to have completed the vessels within the time specified.
I can find nothing in the evidence going to show that the failure to perform the contract was due to delay in the quartermaster's office. The point upon which receiver's counsel principally relied was that it was the duty of the government to have mitigated the loss; to have taken the partially constructed boats and completed them. It is said in Benjamin on Sales, p. 1327 (4th Amer. Ed.), that "in every case the buyer, to entitle him to recover the full amount of damages, must have acted throughout as a reasonable man of business and done all in his power to mitigate the loss." The Supreme Court of the United States (Wicker v. Hoppock, 73 U. S. 94, 18 L. Ed. 752, and Warren v. Stoddard, 105 U. S. 224, 26 L. Ed. 1117) lays down the rule as follows: "Where a party is entitled to the benefit of a contract and can save himself from a loss arising from a breach of it at a trifling expense or with reasonable exertions, it is his duty to do it, and he can charge the delinquents with such damages only as with reasonable endeavors and expenses he could not prevent." The rule applies as well to cases of contract as to cases of tort (Sedg. on Dam. p. 205), and may be variously illustrated. If A. breaks down B.'s fence and B. does not repair till months afterwards, in consequence of which cattle get in and destroy the next year's crop, B. cannot sue for the loss of the crop, but only for the cost of repairing the fence. Loker v. Damon, 17 Pick. (Mass.) 284. If a servant be wrongfully discharged it is incumbent upon him to seek other similar employment, and the amount earned, or that might with reasonable effort have been earned, will go in reduction of his damages. Larkin v. Hecksher, 51 N. J. Law, 135, 16 Atl. 703, 3 L. R. A. 137. If A. and B. enter into a contract by the terms of which A. is to giveB. possession of certain machines which B. is to sell for A. on commission, and these machines are taken out of B.'s possession by C, who also tenders to B. the rights to sell them in a way equally remunerative to himself, B. cannot recover from A. the amount of commissions so agreed upon. Beymer v. McBride, 37 Iowa, 114. If a common carrier agree to transport A.'s oats within a certain time and fail to do so and the oats became moldy in the hands of A.'s agent after that time, when he might have preserved them from injury by stirring, A. cannot recover for the depreciation in the value of the oats, attributable to the failure to bestow necessary care. Hamilton v. McPherson, 28 N. Y. 72, 84 Am. Dec. 330. If A. agree to make boilers for B., and after the work has been commenced B. notifies A. that he rescinds the contract, it is A.'s duty, as soon as practicable, to stop the work. He cannot thereafter go on to the injury of B. Dillon v. Anderson, 43 N. Y. 231. In all these cases it was held that the plaintiff was bound "to mitigate the loss by acting as an ordinary man of business would have acted." The law, for wise reasons, to quote the words of Seldon, J., in Hamilton v. McPherson, imposes upon a party subjected to injury the active duty of making reasonable exertions to render the injury as light as possible." But the rule requires such exertions only as are reasonable. This is illustrated by two cases in the Supreme Court: The Baltimore, 8 Wall. 377, 19 L. Ed. 463, and The Falcon, 19 Wall. 75, 22 L. Ed. 98. In the former ease a schooner was sunk in a collision with the steamer Baltimore, in water so shoal that the masts projected 18 feet above the surface. It was found that the vessel could have been easily raised and repaired, and it was held that the owner could not recover damages as for a total loss. In the latter case, the vessel sank in five fathoms of water, and it was found that she could not have been raised and repaired without a large expenditure of time and money. It was held that the steamer Falcon was liable for her full value. In the case of the Havilah, 50 Fed. 337, 1 C. C. A. 519, the court refused to allow as damages the cost of raising and repairing a sunken vessel so far as that cost exceeded the value of the boat at the time of the collision.
In the light of these adjudications, let us look at the facts of the present case. The two vessels were to cost $105,000. The lowest bid which the government could obtain on readvertising was $154,670. The receiver's witness, Master, says that the vessels which the shipbuilding company agreed to construct would, when completed, have been worth $85,000 apiece, or $170,000, and that the bid of $154,670 was low. He says, moreover, that the amount of work done upon the two vessels at the time the company failed was fairly represented, in money, by the sum of $40,000. It will thus be seen that even had the government been in a position to have gone on and completed these boats they would, in all probability, have cost not less than $114,000, and the government would still have had a claim of $9,000 against the receiver, while the receiver, who now has the incomplete vessels, would have had no further interest in them, or claim respecting them. But it is not likely that the government could have finished the boats for $114,000. The photographs show that they were far from being in a condition to be launched. Their bare ribs were not even, to any considerable extent, plated. It is not shown that the government had any facilities for taking up the work where it had been left off. It had, at that point, no tools, no machinery, no force of men. no organization. It is not shown by the receiver that any other yard would have undertaken the work of completion at a price that would have been advantageous to him. No one can read the evidence without coming to the conclusion that it would probably have cost the government considerably more than $114,000 to have finished the vessels, or to have procured a contractor to finish them. The burden of proving that the damages sustained could have been mitigated rests upon the party guilty of the breach of contract. Hamilton v. McPherson, 28 N. Y. 72, 84 Am. Dec. 330; Howard v. Daly, 61 N. Y. 362. 19 Am. Rep. 285. The receiver has not shown affirmatively that effort and expenditure by the United States in the direction suggested by him would have resulted in any substantial benefit to the trust which he represents.
The suggestion that article 5 of the contract which gives the United States power to complete the work is compulsory is completely met by Bernz v. Marcus Sayre Co., 52 N. J. Eq. 275, 30 Atl. 21, lately decided by the Court of Errors.