American Trading Co. v. Ingram-Day Lumber Co.

Citations

• 110 Miss. 31
• 69 So. 707

Syllabus

<p>1. Shipping. Demurrage. Liability. Delay in loading. Contract. Construction of charter party. Waiver by acceptance of cargo. Trial. Peremptory instructions. Consideration of evidence.</p> <p>In a suit to recover demurrage paid to the master of a vessel for delay in the loading of lumber, which delay was alleged to have been caused by the wrongful acts of defendant’s inspector, in refusing to accept certain lots of lumber tendered for inspection, where it did not appear that such acts delayed the loading, or that they were willful and reckless, plaintiff was not entitled to judgment.</p> <p>2. Shipping. Demurrage. Contract. Construction of charter party.</p> <p>Where in an action to recover demurrage paid to the master of a vessel for delay in loading lumber, it was shown that plaintiff entered into a written contract with defendant by the terms of which plaintiff was to sell and deliver to defendant a cargo of lumber “f. o. b.,’ pier Gulfport, for November loading” and defendant requested that loading be delayed until December to which plaintiff replied, that it would be inconvenient, and that it could not agree to load in December, but afterwards received a copy of the charter party, and arranged a berth for the vessel with full knowledge of its provisions, plaintiff thereby acquiesced in the change of date and was bound by the charter party, so that it was not entitled to recover demurrage paid on account of delay in loading caused by the change.</p> <p>3. Shipping. Demurrage. Delay in loading. Waiver by acceptance of cargo.</p> <p>A right of action for damages for breach of contract arises on the failure of the seller to deliver the goods as agreed on for a delay in delivery. In' the case of a partial delivery an action for damages will lie for the part not delivered, the acceptance of the partial deliveries being no waiver of the breach.</p> <p>4. Trial. Peremptory instructions. Consideration of evidence.</p> <p>The evidence of the plaintiff must be, upon its