Barnhill v. Haigh , 1866 Pa. LEXIS 180 ( 1866 )

The opinion of the court was delivered, by

Read, J.

The defendants, the owners of the tug-boat Gripsey, contracted with the plaintiff to tow his coal-boat and cargo of coal from the pier of the Monongahela Bridge, where she was lying, down the Monongahela river to the Monongahela river at “ The Point,” in the city of Pittsburgh. That instead of so delivering the said boat and cargo at “ The Point,” in Pittsburgh, they towed the same to Manchester, and left the same tied to the bank of the Ohio river, where she sunk with the coal, in the course of the night. The jury found all the facts in favor of the plaintiff, under proper instructions from the court.

The two assignments of error show this to have been so, as there are no exceptions to the charge of the court, except to their refusal to charge as requested on the defendants’ point.

The 1st error is in rejection of the evidence offered by the defendants, which in substance was that the • boat and cargo, as sunk at Manchester, was worth half its original value, with direct proof that the plaintiff never had possession of it, and that the plaintiff never took any care of it, and that the whole was lost, being carried away by the people or sold by the borough authorities for wharfage.

This was clearly irrelevant- and incompetent, for the plaintiff was not bound to rescind or modify his contract with the owners of the tow-boat and accept the flat at Manchester, under water, or at any place other than that at which the defendants were to deliver it.

The 2d error is simply that the suit should have been brought in the name of B. B. Coursin, from whom the plaintiff purchased the boat and cargo. If this be so, then, as the real ownership at the time of the loss was in the plaintiff, it could have been amended in the court below by changing or adding the name of B. B. Coursin for the use of Joseph P. Haigh, and this we would do here if it were deemed necessary.

As the case has been fairly tried on its merits, we do not feel disposed to countenance a mere technical objection which we have the power to remove.

Judgment affirmed.