FEDERAL REPORTER.
'ilstern, as this method of making up a tow in such navigation is usual, a119 thf;1refore is nniIl1porta:nt .to the' ease. '·A.decreemust be entered sustaining the libel. , .; -. ! - i' , ,
i ·
; :.
,
DILLENBACK
v.THE
RoSSEND CASTLE.
(Diatrict Oourt, S. D. NeuJ York. April 5, 1887.) 1·. -LJV1I:-STOClt-PROII'IT8 EXCLUDED· TO TAKE GOODB-RULE OF DAMAGES
. by the ship to receiv:e goods, pursuant to charter, for tranBportation'to a foreign port, the rule of damages is: (1) The difference in the price of transportation; or, (2) if there be no market price a.nd the adventure is not broken up, the actual cost of subsequent transportatIon by anotherv(lssel, together with the expense. in the case of live-stock, of keeping for a reasonable time until other transportation could be procured, with an' aiIowan'ce for depreciation, and the difference in the market value, if any',. during the delay. Where such proof is available. it ",,'ords a complete . indeml,1ity by a rule comparatively simple, and comPI.icated computations of estfm,ated.profits, not allegedin tlle pleadings, should be excluded. 2. TENDER--PAYMENT INTO COURT-AcCEPTANCE-CoBTS.
. A. tender and payment into court isa continuing offer; which may be accepted at any time. The libelant is .entitled to the benefit of the amount depositl,ldat all events; but If he does not accept the offer, and In subsequent litigation recovers no more; be must pay costs from the time of the deposit. STATED-:CARRIAGEOF SirtilEP-FoREIGN MaKET.
8.
The libelant c()ntracted.f9r the rigpt to transport she.ep on the deck of the steam.er R. C. from New York to N.ewcastle. AfterwardB the R. C. refused .to tl;lke the sheep, The libelant in the mean time had sold the right of transportation of · portion of the 8heep at an advanced rate of 25 cents per head, Thl,l residue transported to Bristol, England, bYllnother steamer that sailed six days afterwards, and at:rived at nearly the same time. There was no substantial difference between the market at Bristol and at New. castle.· It 'appearing that therew8.s no market price for the transportation of sheep at Y{)rk at the thne the breach of the. charter, and there being no daUlage, that the rule of damages was (1) the actualloss Of 25 cents per head upon the rights sold; (2) upon the residue, the difference' in the. actual cost of subsequent transportation to Bristol, with the expense for keeping the sheep during the and the depreciation and difference in the market price in the mean time, If any.
Exceptions to Commissioner's Report. George o. Coffin; for libelant. B'l£tler, Stillrrian & Hubbar'd and. Wm. Mynderse,for claimant. BRowN,J. 'On the sixteenth 'of July, 1879, by a charter executed by the agents of the Rossend Castle, lhe libelant became entitled to load all the available spnee on' deck torthe transportation of sheep fro111 New York tp Tyne at five shillings per head, allowing five superficial feet to 'each sheep. The deck space was sufficient for from 800 'to 1,000 sheep.' The ship sailed on the eighth of August following.
THE ROSSEND CASTLE.
463
About the first of August the libelant was notified that the sheep could not be taken on board. This suit was brought to recover damages for breach of the All objection to the form of the action in rein blling waived, the., only question is as to the amount of damages. The libelant sold :his .right totransportatiop, as respects 650 of the sheep, at an advanced rate, of 25 cents per head. By the breach of the <:harter he was deprived of this advance, and his damages, as 650 of the sheep, are therefore $162.50, with interest from August 1, 1879, which the commissioner haueported. , As respects the remaining 350, a long and laborious litigation, has been carried on in libelant's endeavor, to prove, as the damages, the profits he might have made by the trapsPQrtation of the sheep to Newcastle. A great deal of evidence hal! therefore been given concemingaU the items entering into such a computation,-the market price ,of the sheep here, the cost of keeping theinhere, the cost of keeping them on board ship, the probable and the estiIllated depreciation in weight and in quality upon the voyage, age weight at Newcastle, their, market price there, and the expense!',and in marketing them at Newcastle. As the result of aJl, the,evidellce onthe$e points, and under, this mode of ascertaining the damages, .which was insisted, ,upon by the libelaqt, the has found that the libelant sustained no loSS by the breach of the charter, as ,respects the 350 sheep, because he nnds that:$e jLnd marketing of thes,e sheep:at Newcastle would. 4avebeen atterided.l:>ya loss of 869.,85. ,Uponnptnerous exceptions by, the, libelant, aneJ:a:borate argument has been made, touching almost all,the material items en.teringinto the, above mode ofcomptiting damages. " .',' " I cannot 'sustain the mode of ascertaining by the partiee. . Where there are, qHfer£mt modes of, ascertaining the aqtualloss, that which ,is simple and direct, and which affords a complete indemnity, be adopted,rathel; than a different mode that is complicated by many uncertain and hypothetical elements. Had there been any market price for the, of sheep, at New York, the difference between the contract price of transportation and market price at the time of the preach of thre charter, to!/;ether with the cost of keeping the cI'lheepa. reasonable, other transportation could be secured" and the of another. cllarter, (the foreign valJJe :r:emaining the same,),would furnish complete indemnity; and that woul.dtherefore be, in the absence of any plea of special damage, the properrule 'Of damages. Ogden v. Marshall, 8 N. Y. 340; Featherston v. Wilkinson, L. R. 8 Exch. 122. In this case there was no such established business in the transportation of sheep as fixed a market price. This would let in the next best evidence as proof of the actual loss. Rice v. MarUe:y, 66 N. Y. S2, 88; Harris v. PanamaR. Co., 58 N. Y. 660, 3 Bosw. 7,5 Bosw. 312. The libelant, however, shortly afterwards, procured transportation of the same sheep from New York to Bristol, England, on board the steamer Bristol, which sailed from New York six days only after the Rossend Castle, and arrived at nearly the same time as the Ro88end Cas-
464
tIe. invoked by the libelant can only be properly applied has been broken up by the breach of contract, or when the when there 'is ilo simpler rule ofindemnity practicable. Bracket v. McNair, 14 Johns. 170. The ,ad\Tentnre in this case was not, in effect, broken up. ,Through transpOrtation 'by the Bristol the libelant has had !!ubstantially the benefit of his proposed adventure. Except some slight for ti-Jl:nsportation, no difference b.etween the market at Bnstol ahd the market at Newcastle,-no such dIfference as would justify the libelant in: treatiti'g his adventure as entirely broken up by the bre!leh qf the charter"orin claiming hypothetical profits as the rule ofdaDlages., ',The simpll'l:lrule which affords indemnity in this case, in thei-ate of transportation contracted for and therefore, is, the that paid to the Bris:to1, togethetiMth the expenses of the delay in reachJog the English market, if ani pE'rhaps some 'allowance for depreand' th¢differerlce,if any, between the Newciation during ,'<.\,: ,.'
The addition:;tl,documentai-y upon the hearing of 'the efceptionsw6t11d indicate that 'the price of transportation by the -Bristol wiIA only.$J.' per head, or 22 cents less per head than that agreed on ,by Rbsserla 'Castle. lam satisfied, also" that at least 100 sheep 'should 'be' deducted fl'om'thenucibej:' of 1,000 for the libelant sinc'e ofl,OO()'would require all hatches to be occufJied:', 13Y tIie of damages, the sum of '.40,0; .besi4es cpsts, tendered ,and deposited in the of the court th? 'defend.ant 9n the' wbuld more than indemmfy the lIbelant for hlS loss,'jncludmg mterest.', ',' . A tender and payment into cOilrt constitute an a,Clmission that the amount tenqeredisque, and is a cOlitinuingoffer,which can be availed at,any time.. 1Saund., 3'3 1 note 2; Snow v. Miles, 3 Cliff. 608; The Walter W. Pharo, ,1 ,Low. 487,,438; Becker V. Boon, 61N. Y. 317,322; 'Miirrayv. Bethune, 1 Wend. 191; Slack V. BrOwn, 13 Wend. 390. Rule 72 of this court, which requires that'a tender, to be ohny avail, shall qe de,posited in ,court to abidtfits order or decree, was designed to adopt "to that extent the' common-law practice, instead of the looser practice ,<1o,untenanced to,some extent in other courts of admiralty. 2 Pars. Shipp. .. The libelant is therefore'entitled to the Sum deposited in for hisprillcipal, interest, and costs, less the costa 'of the clahnarit '{roUi the'time of the tender. ., , . ,
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t.,;
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f',.
(
ESTES
v. WORTHINGTON.
465
v. WORTHINGTON and others.
«(Jircuit Oourt, S. D. New York. April 12, 1887.) 1. PLEADING-EQUITY-PLEA IN ABATEMENT-ANOTHER SUIT PENDING.
To a bill against W. and others. a plea averring the pendency of another su!t by complainant against W. must be overruled, since the plea of another SUIt pending is good only when the first suit is between all the same parties. An averment in the plea that W.'s co-defendants were only his servant8 and agent8 does not make W. the 801e true defendant, and thus render the plea good, since agents and servants are liable jointly and severally with their masters for their torts of misfeasance, like infringements of trade-marks.
2.
SA.llE-TRADE-MARKS-!NFRmGEMENT-MASTER AND SERVANT.
In Eqnity. Bill for injunction and an accounting. . G. Gdi1relinghuY8en, for complainant. GecJrge A. Black,for defendants. W At.I.A.CE, J. The plea which has been set down for argument must be overrtiled, because the plea of another suit pending is good only when the first lIuit is between a:1l the same parties, and a full decree can be had therein respecting the matters of the second suit. Neither of these conditions exist in the present case. The bill alleges that the several defendants, including Richard Worthington, have been guilty ofjoint acts ofinfringement of the complainant's trade-mark, and it prays for an injunction and an accounting against all the defendants. The plea avers the pendency of another'suit brought by the complainant. against :Richard Worthington for the same matters, and also avers that the defendants other than Richard Worthington were his agents and servants in doing the wrongful acts complained of. It is not necessary to the sufficiency of a plea of another suit pending that the former suit should be 'precisely between the same parties as the latter. Story, Eq. PI. § 738. No person should be made a party who has no interest in the suit, and against whom no decree can be had at the hearing; and for this reason a person who is a mere agent for another in the. transactions in controversy ought not generally to be made a party defendant, unless his presence for the purposes of discovery. See Earl of Egmont v. Smtith,6 Ch. Div. 469; Attwood v. SmaU, 6 Clark & F. 352; Wei.'l8 v. Wardle, L. R. 19 Eq. 171., And it has been held in suits for infringe/ ments bf'patents that there is 11 Class of agentS, such as mere workmen in the employ of a manufacturer, against whom there can be no recovery, although they may have participated somewhat in the acts of infringement. DeJ.ano v. Scott, Gilp. 498; United Nickel Co.. v. Worthington, 13 Fed.' Rep.. But ordinarily the infringer cannot escape responsibility by showing that he "was acting for another: 'Maltby v. Bobo, 14 Blatebf.53; Steiger Y. Hef,delberger, 4 Fed. Rep'.455.· " In torts of misfeasance, like the violation ofa aget;lts :trnd i!lervants are personally'liable to the injured party. Bell v. 3 Gray, 809; Richardson v. KimbaU; 28 Me. 463; Mitchell v. Hd:mwn'!}, 13 v .30F .no.7-30