Chiesa v. Conover

40 F. 496, 1889 U.S. Dist. LEXIS 198

Opinion

Toulmin, J.

As I understand it, the libel in this case is to recover damages for an alleged breach of a charter-party made by the master of the bark Augustine Kobbe for the owners thereof. The libel alleges that the charter-party was not performed by the master under the instructions of the owners. It appears from the libel that the master who executed the charter-party is not a party defendant, but that A. Conover, who subsequently became master, is a party defendant, and it is sought to make him liable jointly with the owners for the alleged damages. The only connection he seems to have had with the charter-party, so far as the allegations of the libel show, is that he promised the libelant to perform the charter-party. He cannot be made liable for a breach of the charter-party made by the former master, for he was not a party to it; and, if it is sought to make him liable for a breach of his subsequent promise as for a breach of a verbal charter-party, it seems to me it must be done in a separate suit. If A. Conover cannot be made liable for the breach of the charter-party made by the former master, and this suit is to recover damages for such breach, then the libel makes no case against A; Conover, and the exceptions by him that the libel shows no cause of action against him is well taken, and should be sustained. If the effort is'to make him liable for a breach of his verbal promise, then no recovery can be had against him. in this suit, because there is no consideration shown for such promise. But, as I have said, I understand from the allegations of the libel that its purpose is to recover damages for a breach of the original charter-party, to which contract A. Conover was not a party, and hence cannotbe made liable on it. The exceptions to the libel are sustained.