Croockewit v Fletcher and Another
| Jurisdiction | England & Wales |
| Judgment Date | 07 February 1857 |
| Date | 07 February 1857 |
| Court | Exchequer |
English Reports Citation: 156 E.R. 1463
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S C 26 L J Ex 153, 5 w. R 348
[893] croookewit i: fletcher and another Feb 7, 1857 -The defendant, a merchant at Liverpool, and the plaintifl entered into a charter party in the following terms -" It is mutually agieecl between the plaintiff the owner of the good ship ("Zwaan") now at Amsterdam, and to sail from thence for Liverpool on or before the loth of March next, of the one part, and the defendant, the charterer, of the other part: that the said ship being tight, staunch and .strong, shall with all convenient speed be made ready," &c , as in the usual punted form of charter-party. The exception was as follows -"Restrictions of purrees and rulers, the dangers and accidents of the seas and navigation, the act of God, fire, pirates, and enemies, throughout this charter-paity always excepted " After the signing of the charter the broker, who had acted for the plaintiff, wrote in the margin, to come after the words "March next," "wind and weather permitting with cargo or in ballast for ship's benefit." He then took the charter to the defendant and told him that he had made the note in the margin which he said did not artect it. The defendant said that the note altered the matter and he did not know that he would then accept the charter, and he ultimately refused to do so. The ship did not sail from Amsterdam in consequence of what was admitted to be "the act of God " Held First, that notwithstanding the words "throughout this charter-party," the sailing of the ship from Amsterdam on the loth March was a condition precedent to the obligation of the defendant to take and load the ship Secondly, that the charter-party was avoided by the alteration so made in the margin -To a declaration on the above charter-patty alleging, as a breach, that the defendant made default in loading the agreed cargo and wholly refused to load the ship or otherwise perform the contract, and wholly repudrated the said charter-party, the defendants pleaded setting out the chatter-party, by which it appeared that it was warranted that the vessel should sail from Amsterdam to Liveipool on the loth of March, and alleged that the vessel did not sail from Amsterdam on or before the loth of March The plarntift' replied to thig plea that before the time of the sailing of the ship from Amsterdam, the defendant refused and declined to load the ship or otheiwrse perform the charter-party -Held, on demurrer, th.it the replication was bad [S C 1G L J Ex 153, o W. E 34S ] The cleclaratron stated, that ou the 28th day of February, A D lM5ti, it was mutually agreed between the plaintiff, who was then the owner of the ship or vessel called the " Zwaan," belonging to Amsterdam, of the burthen of 41)4 I) tons, or thereabouts, and then lying in Amsterdam, and to sail from Amsteidam aforesaid for Liverpool on or before the 15th day of March then next, of the one part, and the defendants of the other part, that the said ship being tight, staunch and strong, and rn every way fitted for the voyage should with all convenient speed be made ready and receive ami take on board a full and complete cargo, or as much lawful goods and merchandise, including specie and machinery, as the defendants ui their agents should tender alongside for shipment, not exceeding what she could reasonably stow and carry over and above her cabin [894] tackle, apparel, provisions, &c , and being so loaded and drspatched the said vessel should with all possible speed sail and proceed to Batavia and Sourabaya, or either of them, or so near thereunto as she mrght safely get, and there delrver the said cargo in the usual and customary manner agreeably to bills of lading , restraints of princes and rulers, the dangers and accidents of the seas and navigation, the act of God, fire, pirates, and enemies, throughout the said charter-party always excepted, on being paid freight '2\ per Dutch regrstered ton, &c (Then followed other stipulations not material to the present case ) And although the plaintiff did all things necessary on his part, and everything happened and. was performed that ought to have happened and been performed, rn order to entitle the plaintiff' to the performance by the defendants of the charter-party, and to have the 14(i4 CROOCKEWLT V. FLETCHER 1 H & N 895 agreed cargo loaded on board the said ship : Yet the defendants made default in loading the agreed cargo, and wholly refused to load the said ship, 01 otherwise perform their said contract, and wholly repudiated the said chaitei-paity whereby the plaintiff' has lost and been depiived of huge gains and profits, &c. Pleas. First: that it was not agreed as alleged. Secondly. That the supposed agreement in the declaration mentioned was an agreement partly in print and partly in wilting, and that in making and enteiing into the same, the plaintiff and the defendants made use of a printed foim of charter-party and adapted such form to their agreement, by making such alterations theiem and additions thereto as were necessary in that behalf. that the agreement so made and entered into was in the words and figures following. (The plea then set out the charter-party verbatim: See post, p. 897.) Averments, that in the agieemeut, as above [895] set forth, the pi mted form of charter-party so used by the plaintiff and the defendants is denoted and shewn by black ink, and the alterations and additions so made in and to such form as aforesaid, are denoted and shewn by ted ink And the defendants fuither say that the said ship or vessel did not sail from Amsterdam for Liverpool on or befoie the 15th day of March in the said agreement mentioned, as in that behalf provided m and by the said agreement. Thirdly. That at the time of the making of the said agreement the said ship or vessel was lying at Amsteidam, without there being any contiact or engagement that the said ship or vessel should, before receiving or taking on boaid the cargo in the said agreement mentioned, cany or be employed in carrying any cargo for the ship's benefit, or for the benefit of the plaintiff as owner theieof, or otherwise howsoevei, of all which premises the plamtifl and defendants at the time of the making of the said agreement had notice that the said agreement was made and entered into as in the second plea is above mentioned and was and is in the words and figures in that plea mentioned: and that after the same was so made and entered into, and whilst it was in the possession of and held by the plaintiff or his agents in that behalf, it was without the knowledge or consent of the defendants altered in mateiial particulars (that is to say) by the addition and_interpolatron therein next after the following clause theieof (that is to say), "and to sail from there for Liverpool on or before the 13th March next," of the stipulations following (that is to say), "wind and weather permitting with cargo or in ballast for ship's benefit." And the defendants fuither bay that the said alteration was not made in correction of any mistake originally made in the framing of the said agreement or to further the intentions of the parties thereto. By reason of which said several premises in this plea aforesaid the said [896] agreement became void, arid was and is void in law and of none etiect. Replications First, the plaintiff takes and joins issue on the pleas of the defendant respectively. Secondly, to second plea. That before the time mentioned in the charter-party for the sailing of the said ship from Amsterdam, the defendants wholly refused and declined to load the said ship according to the charter-party, or otherwise to perform the said charter-party on their part, and then wholly repudiated the said charter-party. Thirdly, to second plea. That the said ship was prevented sailing from Amsterdam on or before the said 15th day of March in the charter-party mentioned, by certain causes excepted from the charter-paity, to wit, by the dangers and accidents of the seas and navigation and by the act of (kid, or by some or one of such causes. Fourthly. Demurrer to second plea. Fifthly, to third plea. That the said addition and interpolation in the third plea mentioned was made without the knowledge, consent, or privity of the plaintiff, by a stranger, to wit, one Hearn, who forthwith informed the defendants thereof, and then and there and before the time for performing the said charter-party in any respect had arrived, and before any repudiation thereof by the defendants on the ground of the sard addition and interpolation, offered the defendants to strike out the said addition and interpolation, if the defendants objected thereto, but the defendants did riot then object to accept or perform the charter-party on the ground of such addition and interpolation having been so made as aforesaid, that afterwards and as soon as the defendants did object to the said addition and interpolation...
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