Hill v. Leadbetter , 42 Me. 572 ( 1856 )

Appleton, J.

The plaintiff has brought this action to recover pay for the freight of a load of goods received by him of the defendant at Bangor, and to be delivered at No. 6, Aroostook county. On his way to the place of delivery, he converted a portion of the goods to his own use, for which the defendant brought against him an action of trover, on which a default has been entered.

It has been decided in England, that if the consignee of goods receive any benefit by their carriage, he cannot defend himself from the payment of freight, on the ground that the goods have been damaged by the master, in carrying them, to an amount exceeding the freight. The remedy of the consignee is by cross action. Shields v. Davis, 6 Taunt. 65.

“ The inclination of judicial opinion in this country, seems to be to allow the injury done by the negligence of the carrier, to be set off as an answer, pro tanto, to his claim for compensation.” Sedgwick on Damages, 451. So, where a portion of the property has not been delivered, the consignee in New York has been allowed to recoup the damages so sustained, in an action against him for freight. Hinsdale v. Weed, 5 Denio, 172.

In Kaskaskia Bridge Co. v. Shannon, 1 Gilman, 15, it was held, that in an action for freight, the defendant may set off a loss of a portion of the goods agreed to be transported, by the carelessness and negligence of the carrier. In LaMotte v. Angel, 1 Hawaiian Rep. 136, the question is discussed with great ability by Lee, C. J., and after a full examination of the English and American authorities, he arrives at the conclusion that, in a suit to recover the freight of goods, the consignee may set off the loss and damage of the goods, arising from the negligence or misfeasance of the carrier.

The party receiving the goods, has been held in all cases responsible for the freight — the only discrepancy between the decisions being, whether the damages" from injury to, or non-delivery of the goods, are to be recovered by a separate action or by recoupment from the freight earned.

That question, however, does not arise here, for the defendant does,not claim a deduction.

The freight having been earned upon the goods received, and the defendant not claiming a deduction therefrom for the goods not delivered, the rulings of the presiding Judge, at Nisi Prius, were correct. Exceptions overruled.

Tenney, C. J., and Rice, Hathaway, Cutting and Goodenow, J. J., concurred.