Ferguson v. Cappeau , 6 H. & J. 394 ( 1824 )

Rucharán, Ch. ,1.

delivered the opinion of the eburt. This case comes upon three bills of exception, taken on the part of the appellant, who was defendant below, being the second-, thirds and fourth bills of exceptions contained in the record; the second and- third on the refusal by the court to direct the jury, that the plaintift', the appellee; was not entitled to recover. To which four objections are raised. The 1st. That there ought to have been an averment in the declaration, that the freight was paid, or tendered to be paid. The 2d. That payment, or tender of the freight, ought to have been proved. The 3d. That there was no evidence in the cause to entitle the appellee to recover; and the 4th. That the bill of lading shows a material variance between the declaration, an if the contract of the parties. There appears to be very little in the three first of these objections. The action was not merely for a refusal to deliver thd goods, but for the entire loss of them to the appellee, by the carelessness and negligence of the appellant, by which he was rendered unable to deliver them. It is not like the case of a contract of sale, where there are dependent conditions, in which the performance of one, depends upon the previous performance of the other; or where there are mutual conditions to be performed at one and the same time, and neither party hag fd'ótie any thing tó exempt the other from performance On his part. '

But the declaration presenting á casé in which iio freight had been earned, and consequently no obligation to pay any, it would nót only have been nugatory tb aver either a payment or tender, but such an averment would have, beeii inconsistent with the othér allegations in the declaration, showing thát the appellant wás entitled to no freight, and that an independent cause of action existed for the negligently losing the goods, on the undertaking safely and securely to carry and transport them from Baltimore to Norfolk. -I ' '

The second objection, “that payment; ór atender of the freight, ought to have been proved, to entitle the appellee to recover,” is obnoxious to the same answer; for if the goods were either'in fact negligéntly lost, or safely conveyed to Norfolk, and delivered by the master to a wrong person, though by mistake, or if any other act was done by him, rendering a delivery of them to the appellee impracticable, .the appellant was entitled to tio freight, and of consequence, the appellee was under no obligation to pay or to tender any. A declaration by the master, that he had delivered the goods to a Fteiichman, who presented the bill of lading for them, appears in the second bill of exception; and in the third, that he -had delivered them at Norfolk to a man he did not know, who appeared to be a Frenchman, and who presented the bill of lading, and paid the freight. There does not appear to have been any endorsement Or assignment of the bill of lading; and if the person to whom they were delivered Xv^s not the appellee, nor authorised to receive them, it v’as a delivery by the master to a wrong person, by which tliey became lost to the appellee, and there existed no demand on him for freight. As to the third objection, as .it relates to the exddence alone in the cause, unconnected with the pleadings, the court certainly did right in refusing to instruct the jury" that the appellee was not entitled to recover; the question, whether the goods xvere safely carried to Norfolk, and delivered to the appellee, or other person having authority to receive them, being clearly a question of fact proper for the decision of the jury, on the. evidence contained in both the second and third bills of exceptions.

The fourth objection, that there is a variance between the declaration and the contract proved, arises out of the general prayer to the court in each bill of exceptions, to instruct the jury, that the plaintiff was not entitled to recover.

It is a settled rule in pleading, that in an action founded upon a contract, if there be in the contract a proviso or condition which operates only in defeasance of it, or merely respects the liquidation of damages after a right to them has arisen by a breach of the contract, it is not necessary to be stated in the declaration, but should come from the other side; but that, if there be a condition precedent, or a proviso or other matter which qualifies the contract, or goes in discharge of the liability of the defendant, it must be sea ted.

The master of a vessel, being the authorised agent of the owner, the principle, that a contract made by the master of a general ship, for the conveyance of merchandise, is considered in law to be made with the owner also; and that each is separately bound to die performance of it, is too well established now to he questioned. The terms of a bill of lading, signed by the master, constitute the engagement or contract of the owner, for the breach of which he is liable to be sued, subject to such exceptions as it may contain, restraining the general responsibility to which he would otherwise be liable as a carrier.

The bill of lading in this case has an exception “of the dangers of the seas,5> which does not merely respect the amount of damages to be recovered, but it limits and restrains, it changes the general obligation, and qualifies the particular contract, of which it is as much, and as material a part, as any clause in it, and the general obligation being thus restricted, the appellant, as owner, is only answerable on his special undertaking, as evidenced by the bill of lading. What then is that special undertaking? Why,, to deliver the goods in good order and condition at the port of Norfolk, the dangers of the seas only excepted; not a general undertaking at all events to deliver them, but only to deliver them, if not prevented by til® dangers of the seas, a strictly qualified contract; and the declaration charges a general undertaking to transport the goods safely and securely to Norfolk, and there to deliver them to the appellee, without any restriction or qualification. The plea is non ‘assumpsit, denying the contract ás laid in the declaration', against -which alone the appellant comes to defend himself, and the bill of lading showing A different and qualified undertaking; is produced in evidence by the appellee.

It is an established general rule, that wheft the contract proved varies from that stated or described ih the declaration; the plaintiff must be nonsuited;

. The contract proved here is essentially different from that declared upon; and we think the variance fatal.

The question arising on tli'e fourth bill of exceptions; is whether Joseph Cappeau, being one of the sureties ih the* administration bon’d of the appellee; was a competent witness in her behalf, the objection growing out of the circumstance of his being also entitled to a, distributive proportion' of the estate of Charles Cappeau, being removed by the release filed in the cause. Whatever force- there might have been in the objection; if he could have been made answerable for the costs of this suit, in an action against him on the administration bond, that objection falls to the ground, when it is perceived that no action for the costs1Coiild be sustained on the administration bond; eitheragainst him; or the appellee, the principal in the bond. Tit England; costs áre sometimes given against án executor Of administrator plaintiff, in his individual character; as if he names himself executor or administrator in an action, where he may Sue in his individual capacity; there if he fails he is personally Háble for costs, as in an action for trover and conversion after the death of the testator or intestate, &c* But where he is obliged to sue in his representative Character, the- judgment for costs- is never de bonis tesfatoris, &c. and thé act of lf9S, c/t.101, sub chi 8, sect.- S, makes no difference in the form of the judgment against an executor or administrator plaintiff; but heis to be’ answerable for costs in the- same' manner as the? deceased would have been, that is in his individual character. That act does not give a judgment for costs de bonis testatons, in the case of a plaintiff executor or administrator, but leaves the judgment to be entered de bonispropriisf as it is in England, in cases where a plaintiff executor or administrator is liable for costs, but goes farther than the practice in England, and gives costs to defendants ih every ©ase,-by extending that judgment de bonis propriis for costs against executors and administrators, to all cases in which they are plaintiffs. And this construction, of the jict is sustained by that clause of the same section, which provides that executors and administrators shall be allowed in their accounts for the cost so awarded against them, provided the courts awarding them shall certify that there were probable grounds for instituting, prosecuting, or defending the suits, &c. lor if the judgment was to be de bonis testatoris, that clause would be, wholly nugatory. And there is no hardship, nor any thing unreasonable in this, since at the same time that it prevents, the waste of the estates of deceased persons, in frivolous and vexatious, suits, which executors and administrators might be tempted, to bring, if they were exempted from all liability for costs, affords them ample protection in the authority given to the. orphans courts to make them an allowance for costs in the. settlements, of their accounts, whenever such allowance shall appear to.be proper.

When costs awarded against an executor or, administrator plaintiff, are allowed by the orphans court, on the certificate of the court in. wh'tc^ ^le suitwas hied, he becomes legally, entitled to retain them out of the assets in his hands, and is not answerable for them on his bond; and, if they are not allowed, they cannot be levied de bonis testatoris, the judgment being against the executor or administrator de bonis propriis? and. the assets of the deceased-altogether unaffected by it. And in no event can the sureties in an administration, or testamentary bond, be answerable for costs, awarded against an administrator or executor, plaintiff; Joseph Cappeau} therefore, was a competent witness.

JUDGMENT REVERSED, AND PROCEDENDO AWARDED.,