Bohn v. Cleaver

25 La. Ann. 419

• Court: Supreme Court of Louisiana
• Decided: May 15, 1873
• Docket: No. 2890
• Status: Published

Opinions

Ludeling, C. J.

This suit is for damages for the violation of a contract of affreightment. The conclusion we have come to. on the question of damages, after a careful examination of the evidence, renders it unnecessary for us to decide any other question discussed by counsel. If it be conceded that the contract was violated willfully, or through carelessness, still the measure of damages would be the injury inflicted upon the plaintiff, for there is no penal clause in the contract. It is as follows :

“ August Bohn, Esq.:

“We offer you the British auxiliary steamship Robert Lowe, about twelve hundred and seventy-seven tons register, for a full cargo of cotton, privilege Liverpool or Havre, at three-quarters pence three farthing's for the former, or seven-eighths pence latter, with five per cent, primage, invoice weight, steamer free of commissions, here or in Liverpool or Havre j thirty days to he allowed for loading at the port, and steamship to be ready to receive cargo not later than the fifteenth of October. “HUNTER & CO.

“Accepted.

“P. p-. AUG. BOHN.

“ K. W. SIMPSON.”

It appears that the Robert Lowe arrived at the bar at the mouth of the Mississippi river on the thirtieth September, but she did not reach New Orleans until about the twentieth of October, four or five days after the time when she should have -been there, in accordance with the terms of the contract. Freights declined from the fifteenth of October, 1869, steadily, until the end of November. So far as shipping the plaintiff’s own cotton was concerned, this was a gain to him, and not a loss. So far as sub-letting the ship to other shippers was concerned, he did not make any such contract. He testified that he did not like to take the risk of making contracts, because he was apprehensive that the vessel would not be here in time. And for these speculations, which he thinks he might have made, but which he did not dare to make, he wishes the defendants to pay him $16,000.

Damages arising from the presumable profits of a speculation that was never made are too uncertain for a court of justice to award.

The evidence shows that the Robert Lowe was at the bar on the thirtieth of September ; that efforts were being made to get her over the bar, that these facts were known to the plaintiff; and that the Lowe actually reached the city only a few days after the time she was to be ready to load. It is further proved that she could have discharged her cargo and received her load in ten or twelve days. We are at a loss to see how the plaintiff has been injured. But he stands upon his bond, and demands his pound of flesh. We award him everything that is in the bond, but nothing that is not therein written.

It is therefore ordered and adjudged that the judgment of the lower court be avoided and reversed, and that there be judgment in favor of the defendants, rejecting the plaintiff’s demand, with costs of both courts.