Suit was brought on the common counts, | were, therefore, more difficult to tow, and and a special count for services rendered by that the parting of the hawser the last time the plaintiff's tug Britannia in towing cer- was due to their condition and the storm tain scows at the request of the defendant. they encountered. The defendant, in addition to the general issue plea, pleaded, first, payment; second, that the towing for which the plaintiff seeks to recover was so carelessly and negligently done that the scows were wrecked and the defendant sustained loss in excess of the plaintiff's claim; and, third, that the defendant contracted to tow the scows from Mobile to Baltimore, and "employed the plaintiff's tug Britannia to do a portion of said towing"; that said tug was not properly equipped for that purpose, and used an improper cable or hawser, and by reason thereof said hawser broke and the scows were wrecked; that afterwards the owners of the scows "filed a proceeding in admiralty in the District Court of the United States for the Eastern District of Virginia, and a decree was entered therein against the tug Britannia"; and that in the adjustment and settlement of the loss the Britannia was compelled to pay by reason of its said negligence the claim of the plaintiff was allowed and deducted. The payment, negligence, and allowance of the plaintiff's claim set up in the pleas were denied by the plaintiff, and the trial resulted in a verdict and judgment in its favor, from which judgment the defendant has again appealed. During the trial the defendant reserved 11 exceptions, all of which relate to rulings on the evidence except the eleventh, which brings up for review the action of the court below on the prayers. [1] The contract for the services of the Britannia was made by Edward H. Ray, the treasurer of the plaintiff, and Robert H. Bradford, secretary and treasurer of the defendant. It was not in writing, and there is a dispute as to its terms. Ray states that Bradford called him "up on the telephone, and said he had two mud lighters in Charleston, and that he would like to charter the tug Britannia to go down there and bring them to Baltimore," and that he, Ray, "agreed to hire to Mr. Bradford, of the American Towing and Lightering Company, the Britannia, to go to Charleston, at the rate of $125 a day, to bring .." The witness was interrupted at this point, and later, when asked if he had stated all the conversation with Bradford, said he thought he had, and that "the object was for the Britannia to go there and tow the two lighters from Charleston to Baltimore." Bradford states: "I called up Mr. Ray, secretary and treasurer of the Baker-Whiteley Coal Company, and asked him if his tug Britannia was available to go to Charleston, S. C., and tow two mud scows to Baltimore. After repeating the question several times on the phone, I explained to him what was required, and, after some dickering on the price, I agreed on the price of $125 a day. I told Mr. Ray that I had to confer with the owners of the scows, but I would advise him later." He states further that "the time was to begin when the tug Britannia sailed and to cease on delivery of the scows in Baltimore." Evidence was introduced by the defendant tending to show that there was a general and uniform custom prevailing in the towing business, according to which, unless the tow is delivered at its destination, the tug is not entitled to any compensation, except when payment in case of loss of tow is specially provided for in the contract, while evidence was produced by the plaintiff to show that according to the established custom, if the tug is hired by the day, the owner is entitled to compensation, whether the tow reaches its destination or not. The defendant also offered in evidence the answer of the plaintiff in the case of the Stand It appears from the evidence that the defendant was under a contract with the Standard Dredging Company to tow four scows belonging to said Dredging Company from Mobile to Baltimore, and that the scows were accordingly towed by the defendant's tug Buccaneer from Mobile to Charleston. The defendant then engaged the plaintiff's tug Britannia to bring two of the scows from Charleston to Baltimore; the other two being towed by the Buccaneer. The plaintiff agreed to furnish the hawser. Shortly after the Britannia left Charleston with the scows in question, and, notwithstanding the weather was fair and the sea smooth, the hawser parted twice, and two or three days later, during a storm, the hawser again part-ard Dredging Company against the Britaned, and the captain of the Britannia determined to abandon the scows, and went to Norfolk. The scows, several days after they were abandoned by the plaintiff's tug, were found by their owner on the beach below Cape Henry, and were a complete wreck. The defendant offered evidence tending to show that the hawser was defective, and that the failure of the plaintiff to furnish a proper hawser was due to the plaintiff's negligence; while the plaintiff produced evi nia, in the District Court of the United States, in which the plaintiff stated that it was under a contract with the American Towing & Lightering Company, the defendant in this case, to tow the scows from Charleston to Baltimore, and the plaintiff offered evidence of certain alleged admissions of Mr. Bradford to the effect that, under the contract in question, the plaintiff was entitled to recover for the services rendered notwithstanding its failure to deliver the scows. six prayers, which were granted by the court | of these prayers is based primarily on its below, and the defendant offered ten, all of contention that all of the evidence shows that which (with some modifications of the third, the contract sued on was one by which the fourth and fifth) were granted, except the plaintiff undertook and contracted to tow the second, eighth, ninth, and tenth, the last | scows from Charleston to Baltimore, and, three of which sought to take the case from the jury on the ground that there was no evidence in the case to justify a verdict for the plaintiff. having failed to do so, it cannot recover, and the further contention that there is no evidence in the case to show what the services rendered by the tug Britannia were reasonaBy the plaintiff's first prayer, the jury bly worth. We think the evidence to which were told that if they found that the plain- we have already referred is a sufficient antiff chartered the tug Britannia to the de- swer to the first of these contentions. Cerfendant for so long a time as the defendant tainly if the statement of the treasurer of might require the services of the tug, and the plaintiff that he hired the Britannia to that the defendant agreed to pay for such the defendant at $125 a day to go to Charlesservices $125 a day, and further found that ton for the purpose of towing the scows to the defendant did use the tug for 10 days, Baltimore, and the statement of the secrebut did not pay the plaintiff, then the plain-tary and treasurer of the defendant, after tiff was entitled to recover, unless the jury the Britannia had returned to Baltimore further found that the defendant, by reason without the scows, that the plaintiff's bill of the negligence of the plaintiff, lost a should have been for 11 days instead of 10, greater sum than the amount due the plain- constituted the only evidence in the case of tiff under said contract. Plaintiff's second the terms of the contract, it would not be prayer instructed the jury that, if they contended that the agents of the plaintiff and found for the plaintiff under its first pray- defendant, who made the contract, intended er, then they were to allow the plaintiff that the plaintiff was not to receive compen$125 a day for each of the 10 days that the sation for the use of the tug unless the scows defendant used the plaintiff's tug, less what were delivered in Baltimore. ever sum the jury should find the defendant [2] The hiring or chartering of a tug for lost by reason of plaintiff's negligence, with a certain purpose does not necessarily imply interest in the discretion of the jury. Plain- a contract on the part of the owner of the tiff's fifth and sixth prayers are practically tug that the purpose for which it was hired the same as its first and second, except that shall be accomplished. The question, howthe fifth prayer is based upon the finding of ever, was practically decided on the former the jury that the plaintiff chartered the tug appeal, where this court refused to hold that Britannia to the defendant for so long a the uncontradicted evidence showed that the time as the defendant might require the serv- plaintiff contracted to tow the scows to Balices of said tug in going to Charleston and timore. It is true that the evidence in this bringing the scows from there to Baltimore. case is not exactly the same, and that the By the plaintiff's third prayer, the jury were court on the first appeal relied very largely instructed that if they found "that the on the statement of Ray that he "refused to plaintiff entered into a contract with the de- agree" on behalf of the plaintiff "to tow the fendant, whereby the plaintiff hired the tug scows from Charleston to Baltimore." But Britannia to the defendant at the sum of the court also referred to the statement of $125 per day to bring certain scows from Bradford that he "hired from Mr. Ray the Charleston to Baltimore," and further found Britannia to proceed to Charleston, S. C., for that, in accordance with the contract, the the purpose of towing the scows to BaltiBritannia went from Baltimore to Charles- more, for the compensation of $125 a day," ton, and did there take said scows in tow as evidence tending to show that the plainand start with them to Baltimore, and fur- tiff did not contract to tow the scows from ther found that the scows were lost by the Charleston to Baltimore. The statement of Britannia and destroyed, and that such loss Ray at the last trial does not differ substantiand destruction was not due to any negli- ally from the statement of Bradford at the gence on the part of the Britannia or her first trial, which we have just referred to, and master or crew, and should further find that to which, as we have said, Judge Schmuckthe defendant had not paid the plaintiff for er referred as evidence corroborating the the services of said tug, then their verdict statement of Ray that he did not contract to should be for the plaintiff, and its fourth tow the scows to Baltimore. There being a praver directed the jury that, if they found dispute as to the terms of the oral contract. for the plaintiff under the third prayer, the we must hold, as we did in 111 Md. 504, 75 plaintiff was entitled to recover what the Atl. 341, that it was for the jury to find what jury should find the services of the Britan- the contract was, and that there was therenia were reasonably worth from the time fore no error in the rejection of defendant's she left Baltimore until the time the scows eighth, ninth, and tenth prayers. We see no were lost, with interest in the discretion of objection to the first, second, fifth, and sixth the jury. prayers of the plaintiff, and we do not un them to be questioned by the appellant; the only ground of its exception being that they were not justified by the evidence in the case. the United States said: "A general ship carrying goods for hire, whether employed in internal, in coasting or in foreign commerce, is a common carrier; and the ship and her owners, in the absence of a valid agreement to the contrary, are liable to the owners of the goods carried as insurers against all losses, excepting only such irresistible causes as the act of God and public enemies. Liverpool Steam Co. v. Phenix Ins. Co., 129 U. S. 397437 [9 Sup. Ct. 469, 32 L. Ed. 788]. But a tug and her owners are subject to no such liability to the owners of the vessels towed, or of the cargoes on board of them. The owners of those vessels or cargoes cannot maintain any action for the loss of either against the tug or her owners, without proving negligence on her part. As was said by Mr. Justice Strong, and repeated by the present Chief Justice: 'An engagement to tow does not impose either an obligation to insure, or the liability of common carriers. The burden is always upon him who alleges the breach of such a contract to show either that there has been no attempt at perform 999 [3] The defendant's second prayer instructed the jury that, according to the uncontradicted evidence in the case, the contract between the plaintiff and the defendant was that the plaintiff's tug Britannia "should proreed from Baltimore to Charleston, and from there tow two scows to Baltimore, at the compensation of $125 a day, the tug to provide the hawser," and, if they found "that the scows were lost while being towed by the plaintiff's tug by reason of the failure of the plaintiff to provide a good and sufficient hawser," etc., their verdict should be for the defendant. Apart from the objection that the prayer withdraws from the jury the question of what the contract was, it asserts the proposition that, if the scows were lost by reason of the failure of plaintiff to provide a good and sufficient hawser, the plaintiff is not entitled to recover. It may be said that the authorities agree that ordinarily it is the duty of the owner of tugs engaged in the tow-ance, or that there has been negligence or uning business to "furnish a seaworthy vessel skillfulness to his injury in the performance. of sufficient capacity and power, and proper- Unlike the case of common carriers, damage ly equipped with the necessary fittings and sustained by the tow does not ordinarily appliances." 38 Cyc. 567-569; Baker-White- raise a presumption that the tug has been in ley Co. v. Neptune Nav. Co., 120 Fed. 249, 56 fault. The contract requires no more than C. C. A. 83; In re Britannia (D. C.) 148 Fed. that he who undertakes to tow shall carry 499; The Quickstep, 9 Wall. 665, 19 L. Ed. out his undertaking with that degree of cau767. But we think it equally clear that tion and skill which prudent navigators usutugboats engaged in towing are not common ally employ in similar services.' If the carriers or insurers, and in discharging their plaintiff in the case at bar exercised reasonaduties are only required to exercise reasonable care and skill in providing the hawser ble skill and care. 38 Cyc. 562; BakerWhiteley Co. v. Neptune Nav. Co., supra; Steamer Webb, 14 Wall. 406, 20 L. Ed. 774; Trans. Line v. Hope, 95 U. S. 297, 24 L. Ed. 477; In re Moran (D. C.) 120 Fed. 556; The J. P. Donaldson, 167 U. S. 599, 17 Sup. Ct. 951, 42 L. Ed. 292; In re Ravenscourt (D. C.) 103 Fed. 674. In the case of The Tug Moran, supra, the court held that there was no ground upon which the owner of a tug could be regarded as an insurer of the tug's equipment. In the case of the Steamer Webb, supra, the court said: "It must be conceded that an engagement to tow does not impose either an obligation to insure, or the liability of common carriers. The burden is always upon him who alleges the breach of such a contract to show either that there has been no attempt at performance, or that there has been negligence, or unskillfulness to his injury in the performance." In the case of The L. P. Dayton, 120 U. S. 351, 7 Sup. Ct. 574, 30 L Ed. 669, the court states that: "As between the tow and its tug, the Dayton, the contract of towage involves a responsibility for loss upon the tug only by reason of the want of ordinary care; for a tug is not a common carrier, and does not insure the safety of its tow." And in the still later case of The J. used in towing the scows, it was entitled to recover notwithstanding the jury found that the hawser parted, and that by reason thereof the scows were lost. In other words, the plaintiff's right to recover was not defeated unless the tug or plaintiff was guilty of negligence in failing to exercise reasonable care and skill in providing the hawser. It follows that there was no error in the refusal of the court below to instruct the jury that if they found that the plaintiff did not furnish a good and sufficient hawser, and that by reason thereof the scows were lost, their verdict should be for the defendant, and what we have said in regard to that feature of defendant's second prayer disposes of its exception to the modifications of its third, fourth, and fifth prayers, which modifications were to the effect that the plaintiff was not guilty of negligence, unless it failed to exercise reasonable skill and care in the discharge of its duties. [4] This brings us to a consideration of the plaintiff's third and fourth prayers. By plaintiff's first and fifth prayers, the jury were instructed that, if the Britannia was hired by the day for such time as was desired for the purpose of towing the scows, the plaintiff was entitled to recover for the contract price, unless the jury found that himself by the terms of his contract." And the defendant had, by reason of plaintiff's in the case of The Madras, supra, it was negligence, sustained a greater loss than the said: "It is clear that the contract to tow amount due for such services, and by the de- into Sharpness dock was not fulfilled, and fendant's first prayer the jury were told that that, owing to the circumstance that a fog if they found that the contract between the came on, by the fault of no one the vessel parties was that the plaintiff's tug Britan- stranded on a rock. If the matter had stopnia should proceed to Charleston, and there ped there, that would have been a simple take charge of the scows and tow them to question of an indivisible contract which Baltimore, the compensation to be at the cannot be fulfilled owing to circumstances rate of $125 a day from the time the tug for which neither party is to blame. Under left Baltimore until she returned to Balti- these circumstances, I think there could be more with the scows, and the hawser to be no question that the law holds neither party furnished by the plaintiff, then the contract liable to fulfill that contract, or liable to was an entire contract, and the verdict consequences for not fulfilling it. I think it should be for the defendant, as the evidence is the case substantially of Appleby v. Myshows that the scows were not towed to Bal- ers, L. R. 2 C. P. 651, and follows closely timore. Yet by the plaintiff's third and the analogy of cases as to freight, and those fourth prayers the jury were instructed that cases where the contract, not severable in if they found that the plaintiff hired the its nature, is entered into as a whole, and Britannia to the defendant to bring the cannot be completed through no fault of any scows from Charleston to Baltimore, and one, and neither party has any rights that the Britannia took the scows in tow and against the other subject, of course, always started with them to Baltimore, then the to this, that, if there is a new contract to plaintiff was entitled to recover whatever be implied by the acts of the parties, that such services were reasonably worth, unless gives rise to new rights." Counsel for the the jury found that the scows were lost by plaintiff state in their brief that plaintiff's reason of plaintiff's negligence. If the prop- third prayer "is based on the theory that, ositions presented by the plaintiff's first, sec- whether the contract was divisible or entire, ond, fifth, and sixth prayers and defend- yet if the performance of the contract de ant's first prayer are sound, and we think pended on the continued existence of a certhey are, then there was manifest error in tain object which was not directly under the granting of plaintiff's third and fourth the control of the plaintiff, and that object, prayers. If the plaintiff performed its part through no fault of the appellee was deof the contract, then it was entitled to re stroyed, then the appellee would be entitled cover the contract price, less the amount of to recover on a quantum meruit for the any loss the defendant sustained by reason amount of work done up to the time of the of the plaintiff's negligence. If, on the oth- destruction of the property." "Where the er hand, the contract of the plaintiff was an continued existence of a given person or absolute undertaking to tow the scows from thing is essential to the performance of the Charleston to Baltimore, and it failed to do contract, impossibility of performance arisso, then the plaintiff was not entitled to ing from the perishing of the person or recover at all, unless it could show that per-thing without default will excuse the performance was waived or prevented by the de-formance," and such cases are said by Mr. fendant or was prevented by such an impossibility as the law recognizes as a sufficient excuse. Brantly on Contracts, 217, 221; Watkins v. Hodges, 6 Har. & J. 38; Denmead v. Coburn, 15 Md. 29; Hamilton v. Warfield, 2 Gill. & J. 482, 20 Am. Dec. 448; Coates v. Sangston, 5 Md. 121; Gill v. Vogler, 52 Md. 666; North Bros. & Strauss v. Mallory, 94 Md. 316, 51 Atl. 89; South Bldg. Asso. v. Price, 88 Md. 155, 41 Atl. 53, 42 L. R. A. 206; Kribs v. Jones, 44 Md. 406; P. R. R. Co. v. Reichert, 58 Md. 261; Milske v. Steiner Mantel Co., 103 Md. 235, 63 Atl. 471, 5 L. R. A. (N. S.) 1105, 115 Am. St. Rep. 354; The Madras, Law Rep. Prob. Div. 1898, N. S. 94. In the case Penna. R. R. Co. v. Reichert, supra, this court said: "If the thing promised be possible in itself, it is no excuse that the promisor became unable to perform it by causes beyond his own control, for it was his own fault to run the risk of undertaking unconditionally to ful Brantly to be exceptions to the general rule that impossibility of performance arising subsequent to the formation of the contract is no excuse for failure to perform. Brantly on Contracts, 261, 266. The rule and exception are recognized in the case of Butterfield v. Byron, 153 Mass. 517, 27 N. E. 667, 12 L. R. A. 571, 25 Am. St. Rep. 654, where Judge Knowlton says: "It is well-established law that where one contracts to furnish labor and materials, and construct a chattel, or build a house, on land of another, he will not ordinarily be excused from performance of his contract by the destruction of the chattel or building without his fault before the time fixed for the delivery of it. Adams v. Michols, 19 Pick. (Mass.) 275 [31 Am. Dec. 137]; Wells v. Calnan, 107 Mass. 514 [9 Am. Rep. 65]; Dermott v. Jones, 2 Wall. 1, 17 L. Ed. 762; School-Dist. v. Bennett, 27 N. J. Law, 513 [72 Am. Dec. 373]; Thompkins v. Dudley, 25 N. Y. 272 [82 Am. [7] The fourth and fifth exceptions are to the rejection by the court below of statements of the witnesses of what was said by the engineer of the Britannia in regard to the condition of the tug's machinery. There is no evidence to show, and we do not understand the defendant to contend, that the loss of the scows was due to any defect in the tug's machinery. The evidence therefore was not material or admissible. where work is to be done under a contract | were in the same condition they were when We see no objection to this on a chattel or building which is not whol- they broke. ly the property of the contractor, or for evidence. If, as contended by the defendwhich it is not solely accountable, as where ant, the hawser was defective at the time it repairs are to be made on the property of parted, there was no way by which the conanother, the agreement on both sides is upon dition of the ends could have been improvthe implied condition that the chattel or ed, and there is no reason why the defendbuilding shall continue in existence; and ant should object to evidence of their conthe destruction of it without the fault of ei- dition several months after the accident. ther of the parties will excuse performance of the contract, and leave no right of re covery of damages in favor of either against the other." If in this case the plaintiff, after having made a contract to go to Charleston and tow the scows to Baltimore, had found on reaching Charleston that the scows had in the meantime been destroyed, and were no longer in existence, there would be some ground for the contention that this case comes within the exception referred to. But no such facts are found in the record. On the contrary, all of the evidence shows that the failure of the plaintiff to bring the scows to Baltimore was not due to the fact that the scows were lost and ceased to exist, but that the scows were lost because the plaintiff abandoned them at sea. The principle upon which the exception rests has, therefore, no application to the facts of this case. We have not overlooked the fact that on the former appeal, referring to the plaintiff's prayers, we said: "We see no reason for their rejection," etc. But the prayers of the plaintiff were not before the court for review (the appeal having been taken by the defendant, and the plaintiff's prayers having been rejected by the court below), do not appear to have been discussed by counsel, and were not fully considered by the court. [8] The seventh exception was to the refusal of the lower court to admit in evidence the record in the case between the Standard Dredging Company and the Britannia in the United States Court, and we think the evidence was properly excluded. The defendant was not a party to that suit, and the only part of the record admissible for any purpose in this case were the admissions contained in the answer filed on behalf of the Britannia, which were subsequently read in evidence. We see no objection to the evidence referred to in the eighth and tenth exceptions. The questions objected to contain all the evidence reflecting upon the matter in regard to which the witnesses were required to express an opinion, and the questions were not otherwise objectionable. [9] But we think there was error in the rulings of the court in the sixth and ninth exceptions. The questions there asked not only did not contain all of the evidence bearing upon the matter to which they referred, but they omitted important facts, without which the witnesses could not ex [5] The first exception is to the refusal of the court below to allow the treasurer of the plaintiff to state on cross-examination whether Capt. Eaton, the president of the Standard Dredging Company, did not deny liability for the towing. What Capt. Eaton may have said in reference to the liability of the Standard Dredging Company could not in any way have reflected upon the questions, what caused the parting of the hawtion of the defendant's liability. [6] The second and third exceptions are to the admission of the testimony of the captain of the Britannia and of the witness Sanford as to the condition of the ends of the hawser when they were inspected by them about three months after the loss of the scows. It appears from other evidence in the case that these ends of the hawser had been kept in the lazaret of the tug and were taken out and placed on deck by the witness Whitten, who was deck hand on the Brittannia at the time of the accident, and both he and Capt. Dunn testified that they press opinions based upon the evidence in ser, without including in the questions the Because of the errors in the granting of plaintiff's third and fourth prayers, and in the rulings in the sixth and ninth exceptions, the judgment of the court below must be reversed, and the case remanded for a new trial. Judgment reversed, with costs, and a new trial awarded. |