Durchmann v. Dunn

Second Circuit

Durchmann v. Dunn

106 F. 950, 46 C.C.A. 62, 1901 U.S. App. LEXIS 3642

CourtCourt of Appeals for the Second Circuit

DecidedFebruary 27, 1901

DocketNo. 61

StatusPublished

Cited by1 cases

This text of 106 F. 950 (Durchmann v. Dunn) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Durchmann v. Dunn, 106 F. 950, 46 C.C.A. 62, 1901 U.S. App. LEXIS 3642 (2d Cir. 1901).

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Opinion

PER CURIAM.

We concur in the findings and conclusions of the district judge. Inspection of the demurrage clause shows most clearly that the average rate therein stated —“not less than 35,000,” etc. — refers to discharge at the port of destination, not to the loading. Ho, too, it would be a most strained and unwarranted construction to hold that the phrase “in suitable hours and weather” refers to hours or weather elsewhere than at the port of loading, or that it can be availed of to excuse delay occasioned by the circumstance that the lumber got wet (and therefore unfit to ship) through a local rain at the storage yards of the shipper, 12 miles away. The testimony of the master that: the payment; actually made to him in the port of delivery was the “full amount of the freight money, and nothing else,” stands uncontradicfced, and precludes any finding that there was an accord and satisfaction. The charter provided for payment of the demurrage day by day by the party of the second part. It was his debt, and was not provided for in the bill of lading. The master, therefore, released no security when he gave up the cargo So the consignees in Buenos Ayres, and is still entitled to collect: his debt from the charterer, even though the latter was but the agent of the consignees, who were the real, although undisclosed, owners. The decree is affirmed, with costs.

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PER CURIAM.

We concur in the findings and conclusions of the district judge. Inspection of the demurrage clause shows most clearly that the average rate therein stated —“not less than 35,000,” etc. — refers to discharge at the port of destination, not to the loading. Ho, too, it would be a most strained and unwarranted construction to hold that the phrase “in suitable hours and weather” refers to hours or weather elsewhere than at the port of loading, or that it can be availed of to excuse delay occasioned by the circumstance that the lumber got wet (and therefore unfit to ship) through a local rain at the storage yards of the shipper, 12 miles away. The testimony of the master that: the payment; actually made to him in the port of delivery was the “full amount of the freight money, and nothing else,” stands uncontradicfced, and precludes any finding that there was an accord and satisfaction. The charter provided for payment of the demurrage day by day by the party of the second part. It was his debt, and was not provided for in the bill of lading. The master, therefore, released no security when he gave up the cargo So the consignees in Buenos Ayres, and is still entitled to collect: his debt from the charterer, even though the latter was but the agent of the consignees, who were the real, although undisclosed, owners. The decree is affirmed, with costs.

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Bluebook (online)

106 F. 950, 46 C.C.A. 62, 1901 U.S. App. LEXIS 3642, Counsel Stack Legal Research, https://law.counselstack.com/opinion/durchmann-v-dunn-ca2-1901.

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