20th De Tr was by no means an easy tack that the U. S, Consul-Genera', Mr. John Goodnow, had before him when the time came for him to deliver judgment in the Lucia case, which he did on Thursday last. The Luci was a barque carrying about 1,000 tons, of hich Messrs. Moller Bros. of Shanghai were agents and part owners. She was charter din She August Inst for a voyage from Shanghai nominally to Newchwang by Messrs, Schwartz and S Zimmerman, the latter being an American citizen, the charter-party being signed by Messrs, Moller Bros, and Mr, Schwartz. She sailed hence on the 27th of August, and unaccountably got very near to Port Arthur, when she was blown up by a mine or torpedo, only one man all on beard being saved. This occurred on the 10th of September, and when the news of her loss was confirmed, Messrs. Moller Bros. claimed from Mr. Zimmerman, Mr, Schwartz having left Shanghai, the agreed value of the ship, Tls. 16,000, to recover which sum they brought action inthe U.S, Consular Court.
The freight for the voyage was} fixed at Tls. 7,009, waieh wae pee before the vessel sailed, and in the original charter-party there was the following provision: "Should the vessel be captured, or sunk either by mines, torpedoes, shell fire, collisions, or in any manner of a warlike description (feom the day she leaves Shanghai), charterers are to demaify the owners with an immediate cash payment of sixteen thousand fuels Shanghai sycee." The vessel being lost, Moller Bros. went to Mr. Zimmerman and asked him for the stipulated indemnity of Tls. 16,000, The latter, who appears to heve had some idea that the Tls. 46,000 includ d the freight money, Tls. 7,000, which had been pad already, offered the balance, 'I'ls. 9,000, which Moller Bros. refused to accept. Hence the action.
It came out in evidence that two charter parties were signed, one on the 20th and the second on the 25th of August, the latter being the operative one. Mr, Zimmerman's defence was: first, that the charter-riy was nut signed by him, or by Schwartz & Ca, which might possibly be held to bind him, though there was no leat partnership between Schwartz and himself, but by S.E. Schwer: z alone; and secondly, that there was no clause in the charter-party stipulating for an indemnity of Tis, 16,000. There was originally such a clause in the charter party, but it was struck out at Mr, Zimmermi's request. This defence is so good, that a judge with ers acnnien.j Mr." Goodnow, less power of ponetra'ing to the bot-om trath of the ease, would probably hace given the decision in favour! of Zintmerwan, and he would hav seemed to be right, Mr. Goodnow's decision is a p-oot, as we have noted in previous instances, of his strong common-serse and determinate get at the equity of the ca: s.very hea Lily to be congratulated on it, As Law claims to be the perfection of common: Goodnow showed hu [judgment a first-diss lawyer.
dealing with the defence that Mr. Zimmerman did not sign the charter-party, Mr. Godnow taid great weight on the uncontradicted evid-ones of the plain: iffs, and it is noted that the char-er party of the 20th of August is signed by S. E. Schwariz& Ca, and there is no attempt to sugese that there was any other"Co." bat Zimmerman, who took the prominent part in arranging the charter. The uncontrwiicted t timony of E. Moller was "that Zimmerman, whom he hud also known as Jacobs, asked to have the contract in the name of Schwar z, as he (Zimmerman) did not wish to be known in the transaction, a.d that Zmmerman told Schwartz to sign the charter-party, but d: clined to sign himself, b *You can trust me in this mess;' acd that Schwartz excused Zimmerman from signing by saying that he (Zimmerman) was w illiterate, i.e. knew too little Baglish." John Moller entirely corroborated his brother, testified hat all the negotiations for the chartering of the Lucia were carried on by Zimmerman. The judgment points out that it is antecedently improbable that the plaintiffs would have pub their whole reliance on Mr. Schwartz, who was ree ntly bill-ce lector of a local hotel, "Tt is in the records of this Court that Schwartz about two years ago was a runner fora hotel in Shanghai. This is an honourable calling, but not one wi gives credit in large commercial transactions un-Jess another party is considered as As regards the seend defence, the evidence of the Moller: was uncontradicted that the second charter perty as well as its predecesser contained the indemnity clause, but that it was struck out the request of Zimmerman, who said that he did not want it to appear in the charter-party, but would give a separate undertaking to the same effect. The Mollers accepted this promise; but the undertaking, when given, was not in the same terms as the deleted clause, and the plaintiffs declined to accept it. When the news of the loss of the vessel was confirmed, Zimmerman, as we have already said, practically acknowledged his responsibility by offering the plaintiffs Tls. 9,000, which they refused to accept' in full settlement.
No one who has read the case can doubt that real justice was satisfied in the judgment, after full consideration, Mr. Goodnow says: "The testimony of J. and E. Moller must be considered under the fact that they are interested parties. It is the opinion of the Court, taking into account their general reputation, their manner on the witness stand,. Jand the corroborating circumstances and documents, that their wncontradicted testimony is worthy of credence; and that all the facts taken together establish the claim that "S. E. Schwartz" is signed for and must bind S. E. Schwartz and Zimmerman, and S. Zimmerman is liable to a creditor for the d-bt of the partnership." Mr. Goodnow nccordingly gave judgment for the plaintiffs for Tls. 16,000, interest, and costs of the Court; in which the associates concurred, It is a pleasure to those who find that strict law and substantial justice are sometimes in conflict, to come across 'a judgment which the plain man must acknowledge to be entirely satisfactory, and which the lawyer must acknowledge to be good law.
Text read from the printed page and cleaned; old type leaves the occasional error.