Earnshaw v. McHose

The plaintiff’s rule is based on an alleged error in answering his first point. To justify interference, the error should be plain. If it is not, the question should be left to the court of appeals.

Whether the credit claimed on account of freight should be allowed depends on the construction of the freight clause in the contract in suit. In the absence of usage — of which there is no evidence — governing the construction, the court believed, on the trial, that the freight contemplated was the usual rate paid at the dates of shipment. About this there is not, probably, room for serious doubt. What doubt exists, grows out of the method of determining and stating the charter rates. A sum is specified, based on the length of time required by the service, supposing a given degree of despatch to be used in loading and unloading, with provision for deduction or allowance if the despatch is greater, and increase if it is less. Thus three rates are, substantially, named, calculated on the supposed number of lay-days required. The court believed, the smaller sum to be the rate contemplated by the contract, in view of the time occupied; that it was the rate for the service rendered; that if the greater number of days had been required the larger sum would have governed — demurrage belonging to the. category of freight; *591that, if unusual exertion or expenditure bad been .made to obtain the earlier despatch, this should be compensated. The evidence showed it had not, the despatch being no quicker than is common in such cases. This construction seemed to be required, not only by the terms of the contract, but by its spirit. It seemed reasonable to believe that the parties dealt on the basis of the ore’s cost to the plaintiff and the demand for it; that his profits were thus secured, and that, as the cost of transportation was then unknown, this was provided for by the clause in question, which had no other object. It seemed improbable that the parties contemplated the plaintiff’s receipt of a large additional sum, by charging the defendants so much more on account of freight than was expended. Such was the court’s impression at the trial. The credit claimed on account of “stevedores’ commissions” paid the plaintiff, did not seem to fall within the terms of the contract, nor so directly within its spirit as to justify this claim. After full consideration of what was urged in support of the rules, it is sufficient to say that w’e are not convinced that the instruction was erroneous. The rules are therefore dismissed.

The plaintiff has also made the point that so much of the claim on account of freight as relates to the Campinil and Alvito ores delivered under similar contracts is inadmissible under the pleadings. The point, however, comes too late. If it had been made at the trial a plea of set-off' might have been entered. The evidence was admitted without objection on this ground. The plea might still be entered, we think, if necessary to sustain the verdict.