Zellweger v. The Robert Cooper

30 F. Cas. 918

• Court: District Court, S.D. New York
• Decided: December 2, 1852
• Status: Published

Opinion

JUDSON, District Judge.

This was a suit to recover back money paid for a passage to San Francisco. On the 29th of September, 1850, the libellant [Charles Zellweger] applied to Edmund Kimball, Jr., ship agent, for a passage from New York, to San Francisco, in that ship, and paid for his passage money $250, for which the agent gave his receipt in the following words: “Received, New York, September 26, 1850, from Mr. Charles Zellweger, $250, for passage of himself to San' Francisco, California, in the cabin of ship Robert Cooper. E. Kim-ball. Jr., Agent for Ship.” From this day the ship was engaged in taking in her freight, and the libellant was in waiting. On the 21st or 22d of October, 1850, the libellant becoming uneasy by the ship’s delay, called on Kimball, and complained of the delay, and after some conversation between the parties, it was arranged that the ship agent should write at the foot of the receipt these words. “The ship to sail 27th October;” and with this remonstrance added to it the receipt was returned to the libel-lant. It is very evident, therefore, that by this memorandum all previous arrangements as to the time of the sailing of the ship and the previous delay, were waived by the libellant, and both parties expressed their satisfaction in the change of time. Four or five days after the memorandum was added to the receipt, the libellant, accompanied by a witness, called again on the ship's agent, and demanded that the passage money be refunded, in order that he might go over the isthmus. Kimball refused to refund the money, and notified the libellant that he might live on board at the expense of the ship, or board on shore until she sailed. After this interview, Kimball by direction of the master, offered to pay back half the passage money, which was refused, and this suit is brought to recover the whole.

The ship sailed on the 7th of November without the libellant, and the owners retained the money, and claim that, by law and custom of the city, the libellant has forfeited his right to its return. It was testified, that between the 26th October, and the 7th November, the weather was stormy, and unsafe for vessels to proceed to sea upon a long voyage. The vessel was therefore excused from going to sea on that account, and her remaining in port until the 7th of November was no violation of the stipulation contained in the memorandum. But be that as it may, the libellant has no cause of complaint that the ship did not sail on the 27th October, having determined before that day, not to take passage in her, relying upon his right to recover back his money. Under these circumstances, the libellant may have a decree for $125, without interest or costs; the other half of the money to remain in the hands of the ship owners, as an idemnity for the money expended on their part to convey the libellant in their ship to San Francisco. No costs to be taxed to either party.