Price v. . Hartshorn , 44 N.Y. 94 ( 1870 )

The terms of the bill of lading, under which the defendant claims a delivery of all the barley shipped, are these, viz.: "Damage or deficiency in quantity, if any, to be deducted from charges by consignee." This, it is claimed, is equivalent to a warranty or insurance of the safe delivery, notwithstanding providential casualties, by which a loss did in fact occur. The terms are too general to authorize the construction demanded. It is sufficient to throw the burden of proof on the plaintiff, that the damage or deficiency, if any, did not occur by his default, or from any cause other than inevitable accident or misfortune. It does not appear that the rate of freight was unusually large, nor is there any external circumstance indicating that it was the intention of the parties that the carrier should assume more than his ordinary liability in respect to damage or deficiency arising from the act of God.

In Hyland v. Paul (33 Barb., 241), the lessee of an hotel and furniture agreed "to surrender the property in as good condition as reasonable use and wear thereof would permit." It was held that he was not liable for a loss of the furniture by fire occurring without any fault of the lessees.

In Harmony v. Bingham (2 Kern., 99), the defendant agreed to safely deliver goods in a certain number of days, and to deduct two cents per hundred pounds from the freight for every day that the goods were delayed. This was held to be an unconditional engagement, the performance of which was not excused by inevitable accident.

In Wolfe v. Howes (20 N.Y., 197), the plaintiff's testator, Nicholas Vache, agreed to do certain work for the defendants, for one year, at forty dollars per month. Vache did the work as agreed for seven months, when he became sick, and finally died. The labor to be performed required skill and personal services. The price agreed to be paid was large. It was insisted that the contract was entire, requiring performance as a condition precedent to payment, and not excused by sickness or death. It was held that performance having been prevented by the act of God, it was excused, and the plaintiff was entitled to recover for the services rendered.

These cases sufficiently show that special language is required to prevent the operation of the customary rule in cases where the act of God or inevitable accident excuses the non-performance of the contract.

It has been found in the present case that the loss occurred during a severe storm on Lake Champlain, without any fault on the part of the plaintiff. The language of the contract is too general to prevent the application of the customary rule, that loss by inevitable accident is excused. Damage or deficiency only, which would have been prevented by care or foresight, is covered by the terms of the contract; and if the carrier refused to make a deduction from freight in such a case, he would lose his lien or subject himself to an action, not only for freight improperly exacted, as in Harmony v. Bingham, supra, but also for the loss sustained by damage or deficiency.

I think the judgment should be affirmed with costs.

All concur for affirmance.

Judgment affirmed with costs.