Hecla Powder Co. v. . Sigua Iron Co.

52 N.E. 650, 157 N.Y. 437, 11 E.H. Smith 437, 1899 N.Y. LEXIS 866

• Court: New York Court of Appeals
• Decided: January 10, 1899
• Status: Published

Opinion

Vann, J.

Several interesting questions, ably argued by the learned counsel for the appellant, are not before us, because they were not raised by objection and exception in the trial court. We cannot reverse the judgment appealed from unless the record affirmatively shows the denial of some legal right to the appellant during the progress of the trial, and that such denial was duly excepted to. In a civil action we can only reverse upon exceptions, and are compelled to disregard all errors committed by the trial court, unless they were pointed out by an objection and saved by an exception, no matter how serious those errors may be. (Wicks v. Thompson, 129 N. Y. 634.) It is necessary for a party who wishes to preserve a point for the consideration of this court to give the trial court a chance to act advisedly by interposing a proper objection, which raises the point, and by taking an exception, which saves the point. Bo objection, not taken upon the trial, can be urged or considered here. (Serviss v. McDonnell, 107 N. Y. 260, 265.) The position now taken by the appellant, that the evidence does not warrant the verdict, cannot be sustained, because it did not take that position at the trial. (Duryea v. Vosburgh, 121 N. Y. 57.) Bo motion was made to direct a verdict or in the nature of a non-suit or to dismiss the counterclaim, or to take any issue from the jury. So far as appears from the record, which is the only authentic evidénce of the proceedings at the trial, the appellant acquiesced in the submission of all the issues to the jury, and it cannot now be heard to claim that this was error. By not making the objection then, it waived its right to make the objection now. We are confined in our review to the objections made during the trial, when fortified by exceptions, and of these, only three in all, we will briefly consider the two presented by counsel.

Mr. Refiner, who was United States consul at Santiago de Cuba from October, 1885, until May, 1892, when the powder was seized, was called as a witness by the defendant and testified that the entry of dynamite or blasting powder in Cuba was prohibited by a decree of the captain-general, except “ on permit and appeal to the authorities.” He was then shown a book and stated that it was in Spanish and contained the general ordinances of the custom house of the island of Cuba in existence in 1892 “by the force of the law,” and that it was the official book generally used. He was thereupon requested by the defendant’s counsel to translate a portion of the book, which was offered in evidence. The plaintiff objected on the ground that no proper foundation had been laid for its introduction, and the objection having been overruled it duly excepted. The witness thereupon translated and read in English a regulation of the Spanish government as follows: “The consignment of the vessel admitted, the consignee is directly responsible to the Acienda, which is the Custom House, for the duties and fines which the vessel or the cargo has to pay, no matter what it is, and also all extraordinary expenses which may be occasioned by the necessity of having to re-embark the cargo or part of it. When the consignee is also the agent for the clearing of the vessel, he will have that subsidiary responsibility for all payments which have been made. The owners of the vessel and cargoes that belong to them are subsidiarily responsible for the duties, fines and charges which the cajfiain incurs.” The witness further testified, without objection, that the Spanish law, upon the failure of a person to pay a fine imposed under the circumstances disclosed by the evidence, not only authorized a levy on his property, but also prevented him from doing business until the fine was paid. He also stated that he tried to have the money restored, but “ unfortunately, as in all these Spanish cases, I was not successful. Once you put anything into the Spanish, government, and it is held and you cannot get it back.”

The objection made to the introduction of the ordinance in question was very general. If it had been more specific, non constat, it would have been obviated on the spot. Under the circumstances, we think that sufficient foundation was laid for this evidence under section 942 of the Code of Civil Procedure, which provides that “ a printed copy of a statute, or other written law, of another state, or of a territory, or of a foreign country, or a printed copy of a proclamation, edict, decree, or ordinance, by the executive power thereof, contained in a book or publication, purporting or proved to have been published by the authority thereof, or proved to be commonly admitted, as evidence of the existing law, in the judicial tribunals thereof, is presumptive evidence of the statute, law, proclamation, edict, decree, or ordinance.” The book received in evidence was a copy of an ordinance of the government, “ printed in Spanish,” in existence by the force of law, and was the official book in general use. While it was not proved, in so many words, to have been published by the authority of the Spanish government, the fact that it was the official book of ordinances in general use, was some evidence of publication by the government, as it could only be official through the action of the government. The book itself is not before us, so that we cannot say from inspection, as the trial court could, whether it purported to have been published by the requisite authority or not, but the facts stated warrant that presumption, in the absence of a more specific objection.

The court charged the jury, in substance, that if the plaintiff agreed to furnish the agents of the defendant in Santiago de Cuba with such documents as would authenticate and legalize the shipment of the powder, and it neglected to do so, and that as the direct result of such neglect the powder was seized and confiscated by the Spanish government and a fine was imposed upon such agents, the plaintiff was liable to the defendant for the amount of the fine. The plaintiff excepted to that part of the charge “ respecting the liability for negli ligence or wrong,” and to that part “ which refers to any liability being imposed upon the agents by reason of any act or omission of the shippers referred to in the charge.”

The exception, as we understand it, simply raises the question whether the plaintiff was under “ any liability ” for neglecting to furnish the defendant’s agents with the papers necessary to lawfully land the powder, as it had expressly agreed to do. The plaintiff, with full knowledge of the facts, made a lawful contract and failed to keep it. It not only knew what documents were necessary in order to lawfully land the powder, but it also knew that the failure to furnish them to the consignees would make them liable for a violation of law in attempting to import an interdicted article. It contracted with reference to this liability in agreeing to furnish those documents to the agents of the defendant in Santiago and thereby place them in a position where they could lawfully receive the powder. This agreement, if it had been performed by the jilaintiff, would have protected the defendant and its agents from any fine for a violation of the laws of the country where the powder was to be landed, It neglected to keep its agreement, and the direct result of this negligence was to place the defendant and its agents, without any fault on their part, in the position of violating the law and to subject them to the imposition of a fine which they were compelled to pay. Having virtually agreed to so ship the powder that the defendant could receive it without liability to afine, it shipped it in violation of law and thereby made the defendant responsible for a fine imposed in consequence of such violation. We think, as was held by the learned General Term, that the fine imposed was the natural and probable result of the breach of contract, that it was within the contemplation of the parties when they made the contract, and that the loss should be borne by the party who was guilty of the breach.

The exception, therefore, was not well taken, and the judgment should be affirmed, with costs.

All concur, except Gray and Martin, JJ., absent.

Judgment affirmed.