TRANSPORTATION COM PATRICK O'NEIL, APPEL CONTRACT HIRING OF LIGHTER AGREEMENT TO PAY FOR LOSS INEVITABLE ACCIDENT PLEADING IMMATERIAL DEFENSE. - Where the hirer of a lighter agreed with the owner that if the lighter should be lost or damaged during the term of hiring, to the extent that it could not be put in the same good condition as when received, the hirer would pay a stipulated sum for the lighter, without any provision or stipulation in the agreement as to the manner or cause of the loss, the owner is entitled to recover damages from the hirer for a loss of the lighter, irrespective of the cause of the loss; and where the lighter was lost in a storm during such term, and an action was brought upon the contract by the owner, an answer admitting the loss of the lighter, and alleging that the lighter was not injured, lost, or destroyed by any act, negligence, or default of the defendant, but by the act of God and the elements, and setting forth the particulars of the loss, raises no material issue as to whether the lighter was lost by inevitable accident. ID. UNFORESEEN IMPOSSIBILITY OF PERFORMANCE. ID. Where a party has expressly undertaken without any qualification to do any thing not naturally or necessarily impossible under all circumstances and does not do it, he must make compensation in damages, though the performance was rendered impracticable, or even impossible, by some unforeseen cause over which he had no control, but against which he might have provided in his contract. - STIPULATED VALUE OF LIGHTER DEFENSE OF LESS VALUE JUDGMENT UPON PLEADINGS. In an action upon such contract, an answer alleging that the lighter when delivered to the defendant was of a less value than the stipu lated sum agreed to be paid in case of loss, presents a partial defense to the action, and a judgment upon the pleadings for the stipulated sum with interest is erroneous. ID. STIPULATED DAMAGES-PENALTY-CONSTRUCTION OF CONTRACT PLEADING The stipulation in the contract for the hiring of the lighter for the payment of a fixed sum in case of loss or irreparable damage to the lighter, must be construed as a penalty within which the actual damages for the loss or injury might be assessed, and not as fixed liquidated damages; and the plaintiff in suing upon the contract should have alleged and proved the actual damage. CONTRACT OF BAILMENT SALE OF LIGHTER INDEMNITY. The agreement for the hiring of the lighter was a contract of bailment, giving the bailee only a special property therein for the fixed term, the general property remaining in the bailor, and it would be absurd to construe the contract as one of sale of the lighter on condition of its loss during the term of bailment; but it must be construed as a contract of bailment, with a stipulation to indemnify the owner against loss of the property for any cause. ID. INSURANCE ID. ID. VALUED POLICY VALUE OF PROPERTY. The contract was not one of insurance in the legal or commercial sense of the word for want of the specifications required by section 2587 of the Civil Code, and cannot be deemed a valued policy" for want of specification of the value of the property insured, as required by section 2596 of the same Code, and the damages to be recovered can only be estimated by proof of the value of the property. SUM FIXED AS SECURITY PENALTY EXCESSIVE COMPENSATION INTENTION OF PARTIES. A sum fixed as security for the performance of a contract containing a number of stipulations of widely different importance, breaches of some of which are capable of accurate valuation, for any of which the stipulated sum is an excessive compensation, is a penalty; and the application of this rule does not always depend upon the intention of the parties. VOID STIPULATION FOR LIQUIDATED DAMAGE RECOVERY OF ACTUAL DAMAGES. The stipulation in the contract, that in case the lighter should be lost or damaged to the extent that it could not be put in the same good condition as when received, the hirer should pay a specified sum for the lighter, is a contract by which the amount of damages to be paid, or other compensation to be made for a breach of the obligation, is determined in anticipation thereof," in the sense of section 1670 of the Civil Code; and such a case not being one in which "it would be impracticable or extremely difficult to fix the actual damage" in the sense of section 1671 of the same Code, the stipulation is void, and the owner is entitled to recover only his actual damage proximately resulting from the loss of the lighter, which must be averred and proved. APPEAL from a judgment of the Superior Court of Los Angeles County. The facts are stated in the opinion. Robarts & Robinson, and A. M. Carpenter, for Appellant. John D. Bicknell, and D. P. Hatch, for Respondent. VAN CLIEF, C.- On November 3, 1890, the respondentplaintiff (a corporation), as party of the first part, and the appellant-defendant, as party of the second part, executed the following agreement: "That the said party of the first part, for and in consideration of the covenants and agreements hereinafter mentioned to be kept and performed by said party of the second part, does covenant and agree unto the chartering and letting to hire of its coal lighter Wilmington,' her anchor and chain, unto the said party of the second part, for the term of one month from the date hereof; said lighter to be exclusively employed during the term of this charter party in transporting rocks from Santa Catalina Island to Wilmington Bay, for use on the government breakwater. The said party of the second part, in consideration of the foregoing and the use of said lighter Wilmington,' does hereby covenant and agree to and with the said party of the first part to pay for the chartering and use of said lighter Wilmington,' under the aforesaid conditions, at the rate of fifty dollars ($50) per month, payable in advance, and to return the said lighter Wilmington' to said party of the first part, in the same good condition as when received, ordinary wear and tear not excepted, upon twenty hours' notice being given by the said party of the first part, and to deliver said lighter alongside the Southern Pacific Company's wharf at San Pedro; and should said lighter Wilmington' be lost or damaged to the extent that it cannot be put in the same good condition as when received, the party of the second part, to pay the party of the first part, the sum of three thousand five hundred dollars ($3,500) for said lighter Wilmington.' "WILMINGTON TRANSPORTATION CO., "By its Secretary, W. G. Halstead. "PATRICK O'NEIL." The action is based upon the agreement to pay $3,500 in case the lighter should be lost; and it is averred in the complaint that the lighter "Wilmington" was delivered to defendant according to the agreement; "that on or about the twelfth day of November, 1890, said coal lighter Wilmington,' while in the use and occupation of the defendant, was lost and damaged to the extent that it cannot be put in the same good condition as when received from plaintiff by defendant, said coal lighter 'Wilmington' being totally lost and destroyed; that under and. by virtue of the terms and conditions of said agreement the defendant became indebted to the plaintiff in the sum of $3,500, as provided in said agreement, no part of which sum has been paid. |