Jones v. Sims , 9 Port. 236 ( 1839 )

COLLIER, C. J.

The only question arising in this ease is, whether the shipper of cotton can recover for its loss, of all the owners of a boat carrying goods, &,c. for hire, where he makes a special contract with some of the joint owners, (without the knowledge of the others,) by which the freight is to go in extinguishment of a demand of the shipper against the owners, with whom the contract was made.

According to the English common law, the business of carrying goods for hire was considered a public employment, and the carrier, upon compensation being made, was obliged to carry the goods of all persons, offered him in the regular course of his business: and was only relieved from liability for a loss, by showing it to have resulted either from the act of God, or the public enemies— (Coggs vs. Bernard, 2 Ld. Raym. R. 909, 918; Rushforth vs. Hadfield, 6 East’s R. 525; 2 Bla. Com. 67.) And if he refused to carry goods, having the convenience to do so, he would have been liable to an action, unless he had reasonable ground for the refusal — (Jackson vs. Rogers, 2 Shower’s R. 129 ; 1 Shower’s R. 104, 105; 1 Saund. R. 312, n. 2; Batson vs. Donovan, 4 B. &. Ald. R. 32, per Holroyd, J.; Edwards vs. Sherrat, 1 East, 604.) It is not necessary, that there should be a special agreement for hire, to entitle the carrier to recover a compensation, or to render him liable in the event of a loss, for in the absence of an express contract, he may have an action of assumpsit, founded on a quantum meruit for the recovery of freight — (2 Shower’s R. 129; Moore vs. Wilson, 1 T. R. 660; 5 B. & Ald. R. per Abbott, C. J. p. 353.)

Thus we have seen, that in order to constitute a common carrier at common law, and to impose the liabilities incident to that character, it is necessary that hire should have been paid, or that the right to demand it, exists— (2 Kent’s Com. 464; 1 Salk’s R. 282.)

If a man undertake to carry goods, without any compensation for his trouble, he will only be responsible for a loss, happening by the negligence of himself or his agents. In the case at bar, the plaintiffs in error are not sought to be charged for a loss happening on a gratuitous bailment — so that it is immaterial what may have been the proof as to the manner of the Joss, if the plaintiffs (Jones & Horner,) were excluded by the contract of the defendants with Hammond and Donaldson, from receiving compensation, they cannot be made liable as carriers.

The case of Bignold et al. vs. Waterhouse et al. (1 M. & Selw. R. 255,) is not altogether unlike the present in its facts, and in principle, it is directly in point. The plaintiffs were bankers, residing at Norwich, and the defendants proprietors of the mail coach from Norwich to London. Early in the year eighteen hundred and ten, a person, who was one of the proprietors of another coach, called the old Norwich coach, intending to relinquish a part of his interest in that concern, and having promised the refusal to the plaintiff) T. Bignold, the defendant, Coldwell, proposed to T. Bignold, that if he would give up his claim to that promise, his own family and private parcels, should go free by the mail coach; to which ■ proposal T. Bignold, after some time, acceded. From that time, parcels were sent two or three times a Week, free of expense, until at length, in eighteen hundred and twelve, a parcel was sent by the plaintiffs, to a house in London, containing bills and notes to a large amount, which was lost. There was no evidence that any of the proprietors of the coach, except Coldwell, had any knowledge of the agreement made between himself and Bignold; and an action being brought against all of them¡ to recover for the loss of the package, the plaintiffs were non-suited. A rule nisi having been obtained for setting it aside, and argued, Lord Ellen,borough observed: “ It appears to me, in this case, that there was not any contract with the defendants, constituted in such a manner as to bind more than one of them. There was indeed a contract, and a fraudulent one, between T. Bignold and Coldwell, which was unknown • to the other defendants, to carry the family and private parcels of Bignold, free of carriage, for a consideration moving to Coldwell alone,” Again — “ It (the parcel) was delivered to the defendants for the purpose of carriage, but not for a reward to all the partners; but for a reward which was to be intercepted by one only. It is a general rule, indeedj that where several are concerned together in partnership, notice to one is equivalent to notice to all; but that rule presumes that the transaction is bona fide. Here, however, the case is different; the agreement is made with one of the defendants for his individual benefit alone, and the others are not parties concerned, not being made privy to the agreement. It was incumbent, therefore, on the plaintiffs, to shew that notice was given to the other partners. I do not rely on the argument, that this was a bailment for the conveyance of the parcel without reward, and therefore the bailee responsible only for personal negligence; but the ground I take is this, that there was no contract at all between the plaintiff's and the defendants.” And with Lord Ellenbo-rough, the other judges of the King’s Bench concurred, and the rule nisi was discharged. We have considered thus at length the case in Maulé & Selwyn, because it seems to us so decisive of the one at bar. In that case, the contract was with but one of the owners of the coach — here, it was with two of the proprietors only of the boat: there, the reward was intercepted by one only —here, Messrs. Hammond and Donaldson, if the shipment was made on the footing of their agreement with the defendants, alone received the freight. Here, as in that case, the record furnishes no intimation that Messrs. Jones & Horner had a knowledge of the agreement between the defendants in error and Hammond and Donaldson, so that there is not the slightest ground to infer that they gave their assent to the arrangement, by agreeing to look to Hammond and Donaldson as their debtors primarily, for their proportion of the freight with which the defendants might credit Hammond and Donaldson.

So, in King & Mead vs. Lenox, (19 Johns. R. 235,) an action was brought against the owner of a ship, to recover for goods lost on a voyage from Calcutta to New York. It appearing that the plaintiffs contracted with the master of the ship himself, with the knowledge that he received their goods on his own account, and not in his character of agent for the owners; the court held that the contract was not made by any implied authority of the owners, arising out of the usual course of employment, and that the defendant was not chargable with the loss. To the same effect, are the cases of Satterlee vs. Groat, (1 Wend. R. 272,) and Allen vs. Seawell, (2 Wend. R. 327.) And in Butler vs. Baring, (2 Carrington & Payne’s Rep. 613,) Garrow, B. remarks, that “If persons be foolish enough to send parcels by a wagoner, for a hire to be paid to him, which is never intended to find its way into the pocket of the owner of the wagon, there the owner is not liable, in case the parcel is lost.” (To the 'same point are the cases of Walter vs. Brewer, 11 Mass. R. 99 ; Reynolds vs. Tappan, 15 Mass. R. 370; Thompson vs. Snow et al. 4 Greenl. R. 264, and Riley vs. Horne, 5 Bing. R. 217, 220, 221, in which Best, G. J. delivered a very learned and elaborate opinion.

We do not pretend to say that the owners of a boat shall always receive or be entitled to a reward, for the carriage of goods, in order to render them liable for a loss. If there was an agreement between the master and the owners, or between the owners themselves, by which the master in the one case, or some of the owners in the other, were to receive to their use exclusively, the freight earned in whole or in part by the boat, such an agreement would not exempt all the owners from liability; unless it was known to the shipper at the time his shipment was made. But we do say, that to charge the owners with a loss, where the contract was made through a master, the contract should be made relative to the usual employment of the boat — (19 Johns. R. 236; 2 Wend. R. 327.) This conclusion clearly results from the law of principal and agent; and that where there was an agreement between the shipper, and some of the owners, by which the latter were alone to receive the freight, the owners, not benefitted by the shipment, are not liable for a loss. The authorities already cited are full to this point — (See further, Taggard and others vs. Loring, 16 Mass. R. 336; East India Co. vs. Pullen, 2 Strange’s R. 690.)

It will follow, from what we have said, that if the defendants in error shipped their cotton on the Warrior, under their agreement with Hammond and Donaldson, that Jones & Horner are not liable for the loss, and that the Circuit court should have instructed the jury as asked.

For the refusal thus to instruct them,.the judgment is reversed and the case remanded.