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t1. KEYSElt. '
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, , :.A'.'sbipwascbartered [in' LiverpoolM carry a
'otlumberfrolD Ship island,
for any'e:ttraordlilal't'ooourrencerbeyond the colltrol of the ehartertlr8... , Held; the foould p,revaiU"g.at the ;time 01 the along. the tn'butarles of the Pascagoula river,and which prevented the ! 'C!t/lirtere1'il from otitaillibgthe timber. especially ai. it was th'e of the port "to ,reparecarS'oea ",... MossJ'oint, between wbich place and SbiJ),is,lllt¥) no drought t\le and parol eY.ldenC8waa not ailmlssibldo prove that such , alfroiight'W&s eontaminated by,the parties. ',.' ,,
from for the.8outhernDivi,sion of the Southof Mississippi, " "" ,·I,J,brl by JacobE.Sorenseri and Qtpers, owners of the S. Keyser, for demurrage. Libel ,dismissed. 4,8 Fed. Rep. 117. Libelants, Heard on motion by. the to be autho*ed take testimoIlY ,meaning of the W'9rd,.'fProught" in.tqec1:larter party",as understood blthe parties. Overruled.. " Grant,. tor Uh¢lants. Ford Jiflrd and Jqhn C. Avery, .i Befor.PABDP and. llcCORM::I,CX" Judges, and, Loen, District Judge.
PARDEE,Circuit .fudge. This case js before thi$,Court on an appeal from tha district court, southern district of Mississippi,j'n' a suit in admiralty on a charter party contracting for the, !!hip Urania to take a cargo of timber from Ship island or PensRcola,which charter party contains thefo1l9wing clauses: .',',' "The act of Goil.restra,int of princes apd rulers. the'queen's enemies, fire, lloods, droughts, tit any extraordhlaryoccurreuce 'beyond the control of either aDd all and every other dl\ngers and accidents of the seas, rivers, and navigation, of what nature and kmd soevflr, dul"ing the said voyage, excepted." the computation (If the days allowed for delivering the cargo shaH beieJ!:cluded !lny time l"st byre"son of droughts, floods, storUls, or any extraordinary occurrence beyond of thecbarterers." The respondent in his answer alleges that at the time the said vessel reported for cargo under the terms of said charter there was an unusual drought. general and extensive, prevailing throughout the whole section of country Irom which timber is obtained for the loading of ships a1i Ship island, :Moss Point, and other points in that vicinity, which drought continued for a long while, and prevented respondent from obtainingcargo for the loading of said vessel, notwithstanding he had made arrangements for procuring cargo for her. and would have procured the ,ame in ample time to have loaded her within the said period of 27 working days but for the said drought. A further examination of the record shows that the contention between the purties to the suit is as to
whether the drought contemplated by the 'charter was the drought in and about Moss Point and Ship island affectin,gthe delivery 'of cargo to the shit>;JIoT'was a drought,'which prevailed' 1D the .co\mtry where timber W!1sprOduce'd hindertJd'theshippers from cargo to, deliver:to 'thesQj'p.. now brought before. ,the, pn,the olthe appellee .to be authorized and empoweredjjQ take further proof in support evidence set up in the answer· herein tilea, andespecia:llyto show that the word "drought" used in the 'char· ter,party 'upon antlfiled, in this .case was·understood.by both par· to the <imughtexisting in at;l,d one of adduced, for ,maldllg *e' applicl\.tion is that the meatling of the word .ll.drought"isi under the evidence and. the decision heretofore rendered by this court,alnbiguous atidtechnical,so asto render a deCision thereof bnsatisfactoryarld difficult. .. " . .' . .. ,.' , It seem!!, that th,e case of The Rep. 76, (decided1;>y this court' .at term,) is in fiI.Ol'lt slmilar, to the illstant case; andinthllt case we held thntwhere!8 charter'party allows '8 cer. tainnumber of days for the deHveryof cargo ·alongside of a vessel, and excludes from. cOmputation therein aU' time lost byreasoti bf flood, 'drought, storm, a,ndany extraotdinaryoecurrence beyond the'control sucb exclusion: cannot apply to time lost by the charterer in failing to and have ready 'at the usual place a. lumber on account of the drought which was prevailing .be. fore the chartering of the ship, and which affected the rivers flowing through the cpuntry fromwhiohthe cargoes are ordinarily.procured, 80 .that logswerenot.floated down; and Judge in giving the opinion pf the, court, said: "It is urged in behalf of libelants that it was well known that th6timber of the eonterpp.lated cargoes came from the headwaters of the rivers, and that frequently prevented getting it down the streams to mills where it was prepared .for shipment, and that it should be preaumed that the charter t>arty was made with that knowledge, and the droughLclause should therefore beheld to apply. Wedo not think so. It does not appear that libetants had, in the streams or rivers affected by the drought, any timber Which they were nnable to, gf't down,but it does appear that they had made contracts .which had tlot been'tiHeil, and that they had neve,r accepted. received; OJ: paid Cor the timber for this cargo, and that the delay was not j n not delivering but in not, procuring it. Such construction as is aSked by libelants wouldcom,pletely revolution· ize tbe'1aw of. shippers and ship'owners; make the shipownt'l' resl?0risible for what was pUdnly the duty of the i;lhipper; excuse the shipper of grain for the detention of a ·vessel at New Orleans on account of seasons of droilght on the wheat lields of the. nortbwest, and the shipper ofeoal from Philadelphia for strikes months before in the coal, mines of Pel) nsylvania, of Which the shipper ltcan not had knoWledge at.the time of cbarteri\1g a vessel in be (Lssumedthatthe assumed such r,isks and respollsibility Without the most direct and unequivocal language in the charter pal'ty. In the case of Hudson v. 'Ede, L. R. 2 Q 'B. 566, the shipper was exe'used only because, according to the custom of the port of Sulinah, the grain 'was stored higher up tbe river at Galatz, and on account of ice it eould' not be brought down; bu.t. in, tbe custom is ,shown to be the other wah,-that cargoea are
to he imdiprepared at 'In grant ·v. Covp.rdale, 9 App. Ca\!. 470, cite4by·appellants, it is. said: 'There was no contract as to the par. ticular place from whicbthecargo wll,8 to come, no cj)ntract as to the particular manner in which it was to,be-sQpplil'd, or hoW it was to be brought to the place ofloading, that. therefore, it could not be supposed that the parties were contracting about any such thing." It cannot be denied thi't unless ,tbosewords Of exception. according to their proper construction, take this case which has happened out of the demurrage clause, the mere fact of frost or any other thing havhlg impeded the performance of that which the, charterer, and not the shipowner, was bound to perforIp., will not abs!>lve him trom ,the consequences of keeping the ship too long. It is in that case the term ·loading , was used, but in the pi'esent case the language of the section relied upon would, we consider, as strongly confine the loss to the exclusion of those days which were lost in delivering, llot in procuring. In that case the loading was prevented because the ice prevented bringing the .ron through the canal to ,the dock, but .the cause was considered too remQte to e?Ccuse the shipper. In this case the parties could not deliver becausethey lJ,ad not ,procured, and the reason ,of tbe decision that the cause was too ramote to have it pres 11 med 'that the .owners had against such contingency' bolda with more force than in that. The libelants thernsel ves show that the custom of the port tsthat cargoes are collected and prepared at Moss Point, between which place and Ship island no drought can affect communiit be reasonal:>ly presumejl.that in making a,tch chartertbe own.. er$ weJ;'eaware of the filctthat, the term could have no force unless it were ex,tended to the woods of Louisiana or Mississippi, and intended to take the chances of 8 drought there? We are. clearly of the opinion that 00 such iIi.. tentioncan be from the language of thecootract; general custom &nd usage are directly opposed to such construction, dod we find nothing in loeid custom or usage to demand it." This decision cannot be in any wise taken as indicating that in the construction' of'thecontmct, with regard ·to the meaning of the words used therein, evidence was necessary or could be considered as to what was llnderstoCld by.b'oth or either of the parties at the time of the contract as to the meaning of plain language used therein. Application's to ta.ke evidence on as a matter of course. The Salli8 Magee, 3 Wall. 454;" '1!1te. Wall. On such" applica;, tions the court the, proposed evidence is admissible. The Ocean 6 Blatchf. 24. Parol evidence is inadmissible to show how all the partiesin: interest understood the transaction from its comuiencement to itsconsumm'll.tion, (Bailey v. Railroad Co., 17 Wall. 96,) or to incorporate a custom into an express contract in writing, the terns of which are neither technical hor ambiguous, (Partridge v. Insurance Co., 15 Wall. 573.) Proof of circumstances surrounding the transis admissible to ascertain the subject-matter, but not to add to the contract. Bradley v. Packet Co., 13 Pet. 89; Maryland v. Railway Co.,; 22 Wall. 105; U. S. v. Peck, 102 U. S. 64. In this present case we understand the object of taking evidence to be to bring parol eVl4ehcebefore the court astolV.hatthe parties meant by the use of certain words used in the chartet party, which words are not ambiguous, and haye .80 .well-known and understood meaning, and to enlarge the scope and construction of the written' contract beyond the language and terms thereof. This, we think, wodld be clearly inadmissible, and for this reason the motion is denied.
fl. PITTSBURGH PLATE GLASS 00.
BARB fl. PITTSBUBGH PLATE GLASS
Co. et al.
(C(rcuU Court, W. D. Penn81llivainia. May 9, 1892.)
L Directors, who are also omcers, of a manufacturing corporation, If acting In posl. tlve good faith to the corporation and their costockholders, are not precluded from engaging in the building and operation of other distinct works in the same general business, (here the manufacture of plate glass,) and they do Dot stand, in respect to said works, in any trust relation to the corporation. A stockholder in a manufl¥'turing corporation with hiB own funds bought land, and began the erection of independent works. He was joined In the enterprise by a director of the company. Both were acting in good faith to the col'p9ration. A consolidation of the new works with those of the corporation was effected OD a .tock basis upon terms approved by the unanimous vote of a stockholders' meeting; the plaintiff himself voting in favor of the scheme. Two years later,dissatisfac. tion being expressed by sOme Itockholders, the former owners of the new works offered to rescind the transaction, but the stockholders, by a practically unanimoull Tote. 'declined. The plaintiff, by his subsequent bill, sought to exaot terms more to the corporation. Held, that neither the corporation nor the plaintiff had any Ilqutty to IUpport such a demand. ' The directors and one other stockholder of a manUfactUring corporation, owning among themselves a majority of tho stock, conceived that the demands of trade required the erection of additionai works. which they desired the corporation to build, but the project was defeated by minority stockholders. The projectors then proceeded w,iththoir own funds to build indePllDd,ent works. Bad faith to the corporation was not imputable to any of them. When the works were nearing completion the corporation bought them upon terms not unconscionable In themselves, ,and which had been approved by a stock vote of 16,706 to 1,174'Bha1'eB. The vendors, desiring to have the question decided by the minority stockholders, withheld their own votes until a large majority of the other stockholders had voted in favor of the purchase, and then cast their votes with the majority of the minority. The plaintiff, am,inority stockholder, by his bill Bought not a rescission of the contract, but to reduce the vendors' profit. HeW, that neither he nor the corporation was entitled to relief.
In Equity. Suit by Samuel F. Barr against the Pittsburgh Plate Glass Company and others. Bill dismissed. For former report, see 40 Fed. Rep. 412. S. Schoyer, for complainant; D. T. Watson, for defendants.
ACHESON, Circuit Judge. This bill was filed on May 8, 1889, by Samuel F. Barr, who owns 198 shares out of a total capital of 20,000 shares of. the stock of the Pittsburgh Plate Glass Com pany, which company was incorporated to manufacture plate glass in Allegheny county, Pa., and erected its works at Creighton. It is a stockholders' bill seek. ing relief, on behalf of the corporation, against J. B. Ford, Edward Ford, Emory L. Ford, Artemus Pitcairn, and John Pitcairn, Jr., and was filed by said plaintiff oil the ground that the last-named defendants, as directors, officers, and majority stockholders, control the corporation" and prevent a suit by the corporation itself. The bill charges that these defendants-all of whom, except J. B. Ford, were directors of the company-,.entered into a combination and oonspiracy to erect atTarentum , in said oounty, about one half mile above the plate glass works at Creighton, eimilar works of greater capacity, and to compel said company to purv.5b.no.2-3