Nordemeyer v. Loescher , 1 Hilt. 499 ( 1857 )

Daly, J.

— All that can be gathered from the very imperfect ^¡tement of the case, upon which this cause was heard by the general term of the court below, is, that the plaintiff made an agreement with one Hirschman, a shipping merchant in Hamburg, by which Hirschman promised to send her to New York in the ship Waterloo, and to forward her baggage there, which he told her she would find in New York, at the defendant’s. It does not appear, by the case, whether she paid her passage or only piaid part of it, or mcrety agreed to pay her passage. In one part of the case it is said that “she paid or agreed to pay it,” and, in another, that an “ advance and money” was due by her upon her passage, the freight of her baggage, insurance, &c. Hirschman sent her to this city, in the ship Waterloo, where she arrived eight weeks before the arrival of the baggage. The baggage was received here by the defendant, who paid the charges and expenses upon it, amounting to $59.50, which included $36.18 for advance charges, insurance, &c., in Hamburg, and $23.32 for freight, duties, cartage, storage, and commissions, incurred or payable here. Hirschman delivered the baggage over to another shipping merchant in Hamburg, wbo paid tbc advance or money due upon it to Hirschman, and this shipping merchant consigned it to the defendant, with instructions to collect $36.18 charges at Hamburg, which were noted on the bill of lading, together with tbe charges for freight, storage, commissions, &c., at New York; instructing him, further, not to deliver it until the charges upon it were paid. After the arrival of the baggage in New York, the plaintiff called upon the defendant, and he required her to pay the $59.50, which she refused to do; and, as he would not deliver it until he was paid that amount, for which he claimed to have a lien upon the baggage, the plaintiff brought her action and recovered judgment for $127, the value of the property.

The plaintiff was allowed to recover in the court below, upon the ground that there could be no lien, as Hirschman had received his whole pay for the transportation in advance from the plaintiff. In the judgment of the court, Hirschman violated his agreement and acted without authority, in transferring the baggage to another shipping merchant in Hamburg for transportation. They held that he was a special agent to do a specific and that if he could intrust the execution of the contract to another, the person undertaking to perform it did so in subordination to the original contract, and could acquire no other rights under it than Hirschman had. The law as laid down by the court was correct, if they were right as to the facts. If the plaintiff had paid Hirschman in advance for the transportation of the baggage from Hamburg to New York, then the case cited in the opinion of the court (Fitch v. Goodell, 1 Doug. [Mich.] 1) would have been in point. A carrier has the right to exact payment in advance for his services, and if the person who employs the earlier pays the carriage in advance, he cannot be required to pay it over again because -another party, without his authority, performs the service. In such a case there is no privity of contract between him and the party who performs the service. That party has no lien upon the property as against him, but must look to the party who employed him, for his compensation. When employed, he had the right to exact payment for his services in advance; and, having omitted to do so, he has no superior equities to the owner of the goods, who has already paid for their carriage.

But nothing of this kind appears in the statement of facts upon which this case was heard before the court below It does not appear, by tbe statement, that the plaintiff paid anything for the carriage of this baggage, to Hirsehman. It does not appear, even, whether she paid her passage. From all that appears, she may have paid but part of it, or may merely have agreed to pay for it, and if any part of her passage money remained unpaid, Hirsch-man would have a lien for it upon her baggage in his possession, or in the possession of his agent. Wolf v. Summers, 2 Campb. 631. But it is immaterial whether the passage money was paid or not. It is very evident that the property in this case would not fall within what, in legal acceptation, is regarded as the baggage of a passenger. The baggage which a passenger is entitled to bring with him, and which is included in the general contract for the carriage of the passenger, is ordinary baggage, or such ajjfecles of necessity and personal convenience as are usually carried by passengers. Grant v. Newton, 1 E. D. Smith, 98; Angel on Carriers, § 115. It does not include merchandise, or all that a passenger may desire to bring with him from one place to another. Indeed, it has been restricted so far, in the case of carriage upon land, as not to include money for travelling expenses, carried in the passenger’s trunk. Grant v. Newton, 1 E. D. Smith, 98 ; Hopkins v. Hopkins, 6 Hill, 585. In this case, what is denominated baggage, in the statement of facts, consisted of one box, two cases, and one trunk; the bulk and character of which may be judged, from the fact that the expense of its transportation from Hamburg to New York, by a single vessel, amounted to a considerable sum. In this expense were embraced charges for duties, from which it would seem that it must have included merchandise; for the personal baggage of all persons who arrive in the United States is exempt from duty. Act of March 2, 1799, § 46. Property, evidently so bulky as this, an emigrant would not be entitled to bring with him as baggage. The freight of it alone must have been nearly, if cot quite, equal to. what an emigrant would have to pay for his passage by ship from Hamburg to New York, and the court below could not have been justified in concluding that the agreement of Hirsehman to send Or forward the plaintiff to New York, on payment of her passage money, included tbe transportation of all this property. It. is said, in tbe statement, that be promised to send or forward ber' to New York in tbe sliip Waterloo, and also to forward ber baggage, and that nothing was said at tbe time about tbe freight of tbe baggage, except that it would be found at New York, at tbe defendant’s. He agreed to send ber by tbe ship Waterloo¡ and be did so, but it does not appear that be agreed to send tbe property by that vessel; for, if tbe property was to go by tbe Waterloo, tbe plaintiff would find it on board that vessel upon ber arrival. She would in fact go with it, and there would, in that case, be no necessity to make provision for tbe place where she would find it in New York — no occasion for consigning it to tbe care of tbe defendant. This feature in tbe case, theref^jj, shows very clearly that something was to be paid upon it in New York — the freight for its transportation, with probably other charges, such as insurance, and, it may be, some portion of tbe. passage money — as Iburg, tbe other shipping merchant, when tbe property was delivered to him for shipment, to tbe care of" tbe defendant, paid to Hirscbman tbe “ advance and money due by tbe plaintiff upon her passage, tbe freight of ber baggage, insurance, &c.”

Tbe court below thought that Hirscbman violated bis agreement by delivering tbe property to Iburg for shipment. Such would undoubtedly be the fact, if it appeared that be bad been paid for its transportation, and bad delivered it to another carrier, with tbe understanding that tbe cost of its transport was to be collected from the owner or claimant at tbe place of destination. But nothing of tbe kind appeared. He agreed to send it to tbe defendant, at New York, where tbe plaintiff was to find it, and be did so. Whether be shipped it himself, or employed Iburg to ship it, was wholly immaterial. Tbe contract, was executed. Iburg acted in tbe matter as bis agent, or in subordination to tbe original contract. He could not and did not do anything that was not warranted by tbe agreement. Tbe-. terms and conditions of the contract were not violated either by him or bv Hirscbman, for tbe property was sent to New York exactly as Ilirscbman bad agreed to send it. Iburg did not ad vise tbe defendant that tbe plaintiff was entitled to claim it; but no difficulty arose from tbis omission or neglect, for tbe defendant was willing to deliver it upon tbe payment of the charges. It does not, therefore, lie with the plaintiff to object that another carrier intervened. It was productive of no loss or injury to her. It did not change or vary her position under tbe contract. If Ilirscbman, instead of Iburg, bad shipped the property, she would have beeti required to do exactly what the defendant requested her to do — pay the charges — before she could have become entitled to have tbe property delivered to her. There are certain contracts the performance of which cannot be delegated to another, ardiere a man employs a physician or an architect; because, insuch cases, the personal services and personal skill of the parly employed are engaged. But employing a shipping merchant to forward four cases from Hamburg to New York is not a contract of this kind. He engages that the property shall be forwarded to New York within a reasonable time, and tbe means that he employs to accomplish that object are wholly immaterial. If lie accomplishes it, he fulfils bis contract; and tbis Hirschman did. Though he delivered the property to Iburg, be remained responsible for its safe carriage, and if it was lost or injured in tbe course of its transport, be, and not Iburg, was the party responsible to tbe plaintiff. The lien which attached to it for the charges upon its transportation was, as against the plaintiff, his lien, and the defendant, as bis agent, or rather as tlie agent of Iburg, who was Hirscbman’s agent, bad a right to detain tbe property until the lien was discharged. The fundamental error of the court below consisted in assuming tbat Hirschman “bad received bis whole pay in advance” for tbe transportation of tbe property — a conclusion totally unwarranted by tbe facts. The statement of facts warrant a conclusion directly opposite; that is, tbat he had received nothing for tbis service; that it was a service distinct and independent from the plaintiff’s contract for her passage in the ship Waterloo, and that there Avas a lien upon the property for the charges growing out of its transportation from Hamburg to Now York. Whether a lien, existed to the full amount claimed or not, does not appear to have been agitated, as the court put their decision upon the ground that there could be no lien of any kind; and it is impossible for us to say, upon the statement before us, whether the property was chargeable with a lion to the amount of $59 or not. All that we can say is, that it is very clear that there was a lien upon it to soihe extent.

Judgment reversed.