CHAPTER III BAILOR AND BAILEE No. 59-Charter of a vessel. No. 60-Agreement to consign merchandise for sale, whereunder consignee is to account for net proceeds of sales and return any unsold merchandise. No. 61-Agreement for hire of automobile and services of chauffeur for definite period. No. 62-Agreement for hire of manufacturing plant, with option to purchase. No. 63-Agreement for hire of team of horses. No. 59. Charter of a vessel.1 THIS CHARTER PARTY, made and concluded upon in the City of New York, on the 5th day of January, 1923, between the Doe Transportation Co., agents of the Schooner Sea Dog, of the burden of seven thousand tons, or thereabouts, register measurements, now lying in the Harbor of New York (herein called "the First Party"), and Roe Oil Co. (herein called "the Second Party"), WITNESSETH: That the First Party agrees in the freight and charter of the whole of said vessel (with the exception of the cabin and necessary room for the crew, and the storage of provisions, sails and cables) unto the Second Party, for the voyage from Carteret, New Jersey, and Jacksonville, Florida, to Azua, Dominican Republic, upon the following terms: The said vessel shall be tight, staunch, strong, and in every way fitted for such voyage, and receive on board, during the aforesaid voyage, the merchandise hereinafter mentioned. 1 Of. Davison v. Von Lingen (1885), 113 U. S. 40, 5 Sup. Ct. Rep., 346, 28 Law ed. 885; China Mut. Ins. Co. v. Force (1894), 142 N. Y. 90, 36 N. E. 874. The Second Party does engage to provide and furnish to the said vessel deck cargo, as per attached list, together with any other suitable cargo, but excluding explosives (charterers to have privilege of loading lumber on deck at Jacksonville, but not in excess of what the vessel can safely stow and carry), and to pay to the said First Party, or agent, for the use of said vessel, during the voyage aforesaid, the lump sum of four thousand ($4,000) dollarstwenty-six hundred ($2,600) dollars thereof, payable upon the signing of the bills of lading at Carteret, New Jersey, and to be considered earned, retained and irrevocable, vessel and/or cargo lost, or not lost, and the balance of fourteen hundred ($1400) dollars, payable on signing of bills of lading at Jacksonville, Florida, and to be considered earned, retained, and irrevocable, vessel and/or cargo lost, or not lost. Charterers to load, stow and discharge cargo free of expense to vessel, and pay her wharfage charges, if any, while under this charter. Inward and outward port charges at Jacksonville to be for vessel's account. Second Party to pay all towages at Jacksonville, if any. Inward port charges at San Domingo to be for account of charterers. It is agreed (if not sooner dispatched) the lay days for loading and discharging shall be, as follows: commencing from the time the vessel is ready to receive, or discharge, cargo, and notice thereof given to the Second Party, or their agents, ten days in all, Sundays and legal holidays excepted, are to be allowed charterers and their agents for loading and discharging. For each and every day's detention, beyond said time, by default of the said Second Party, or agent, one hundred and fifty ($150) dollars per day, day by day, shall be paid by said Second Party, or agent, to said First Party, or agent. The cargo, or cargoes, to be received and delivered alongside, within reach of the vessel's tackles. It is understood that the vessel is now here about ready, but, should she not report under this charter by January 20, 1923, charterers to have privilege of cancelling this charter. Vessel to report to Messrs. Koe & Roe, at Jacksonville, Florida. The dangers of the sea and navigation of every nature and kind to be mutually excepted. Commission of two and one-half (21%) per cent, upon the amount of this charter, primage and demurrage, payable by the ves sel to Roe & Co., Inc., and upon receiving of freight on signing thereof, and on subsequent renewals. To the true and faithful performance of all and every part of the foregoing agreement, we, the said parties, do hereby bind ourselves, our heirs, executors, administrators and assigns, and also the said vessel, freight, tackle and appurtenances, and the merchandise to be laden on board, each to the other, in the penal sum of the estimated amount of damages, which sum shall be taken as the liquidated damages for any nonperformance or violation of the terms, conditions or covenants in the foregoing charter party contained. Doe Transportation Co., By John Doe, Roe Oil Co., By Richard Roe, President. We certify the foregoing to be a true copy of the original charter party on file in our office. Roe & Co., Inc., By Thomas Roe, [Annex Cargo List.] No. 60. Agreement to consign merchandise for sale, whereunder consignee is to account for net proceeds of sales and return any unsold merchandise." AGREEMENT, made January 5, 1923, between Doe Co., a corporation, duly organized under the laws of the State of New York, and having a place for the transaction of business at No. 112 Broadway, Boston, Massachusetts (herein called the "First Party"), and the Roe Woolen Co., a corporation, duly organized under the laws of the State of New York, and having its principal office at No. 372 Broadway, Borough of Manhattan, New York City (herein called the "Second Party"), 2 Adapted from Ludrigh v. American Woolen Co. (1913), 231 U. S. 552, 34 Sup. Ct. Rep. 161, 58 Law ed, 345. WHEREIN IT IS MUTUALLY AGREED, AS FOLLOWS: 1. The First Party agrees to deliver to the Second Party, from time to time, such goods, wares and merchandise as it, in its judgment, may see fit, and the Second Party agrees to receive and accept possession of the said goods, wares and merchandise, upon the terms and conditions hereinafter stated. 2. The Second Party agrees to receive and accept possession of such goods, wares and merchandise from the First Party, and to hold and care for the same as the property of the First Party; it being expressly agreed that the title to said goods, wares and merchandise, or to the proceeds thereof, shall always be vested in the First Party, and such merchandise shall be, at all times, subject to, and under, the direction and control of the First Party. The title to the said goods, wares and merchandise shall pass directly from the First Party to such person, or persons, to whom the same shall be sold, in the manner and upon the terms herein set forth. 3. The Second Party shall keep said goods, wares and merchandise fully insured, for the benefit of, and in the name of, the First Party, in a solvent fire insurance company approved of by the First Party. 4. The Second Party agrees to: (a) Sell such goods, wares and merchandise to such person, or persons, as it shall judge to be of good credit and business standing; and (b) Collect for, and in behalf of, the First Party, all bills and accounts for the goods, wares and merchandise so sold; and (c) Immediately pay to the First Party any amount collected as aforesaid, immediately upon its collection, minus, however, the difference between the price at which the goods, wares and merchandise so collected for shall have been invoiced to the Second Party and the price at which said goods, wares and merchandise shall have been sold as aforesaid by the Second Party. 5. The Second Party hereby guarantees the payment of all bills and accounts for goods, wares and merchandise, possession of which may be delivered to it hereunder; and it hereby agrees that, if any goods, wares and merchandise delivered hereunder by the First Party to the Second Party shall not be accounted for to the First Party, in accordance with the provisions of clause "4" of this agreement, it will pay to the First Party the invoice price of said. goods, wares and merchandise, and thereupon the title to said goods, wares and merchandise, so paid for, or to the proceeds thereof, shall vest in the Second Party, and be exempt from the provisions of this agreement. 6. The invoices sent by the First Party to the Second Party shall be subject to the usual trade discounts allowed by the First Party. 7. That, except in the State of Montana, and in the City of Elmira, State of New York, the First Party shall not, during the continuance of this agreement, engage in the merchandizing of fabrics in any manner, except as herein provided. 8. The Second Party shall execute any and all other documents, which the First Party shall deem advisable, in order to carry out the purposes of this agreement. 9. This agreement shall continue for one year. If the Second Party shall breach any of the agreements herein contained, the First Party, at its option, may forthwith terminate this agreement. If, for any reason, this agreement shall be terminated, all merchandise, possession of which shall be held by the Second Party under this agreement, shall be returned to the possession of the First Party, immediately upon said termination. IN WITNESS WHEREOF, the First Party has caused this agreement to be executed in its behalf by John Doe, its Treasurer, thereunto duly authorized, and has caused its corporate seal to be affixed, attested by its Secretary, and the Second Party has caused this instrument to be executed in its behalf by Richard Roe, its President, thereunto duly authorized, and has caused its corporate seal to be affixed, attested by its Secretary, the day and year first above written. |