Layng v. Stewart , 1 Watts & Serg. 222 ( 1841 )

The opinion of the Court was delivered by

Huston, J.

It might be sufficient in this case to say that the errors assigned are all in matters of fact; and that they do not fairly represent what the judge said. The judge stated the facts as sworn to on each side; and, when the testimony was material, read it to the jury; and if in doing this he mistakes what a witness said, or omits the testimony of a material fact, if the counsel will respectfully state to the judge, when he has concluded his statements of the evidence, or when he has concluded his charge, and name the witness whose testimony he has mistaken or omitted, a judge will always recur to it, and state it correctly; but in this case, and generally in this district, the judge submits distinctly to the jury, in some part of his charge, whether they believe the witnesses or not; and did so pointedly in this case. Mr Layng employed Stewart and another man to carry, by wagons, store-goods from Harrisburg to Indiana; and it was distinctly sworn to, that he told the wagoners the goods were for a Mr Ralston. It was not denied that Ralston put the goods into Layng’s warehouse, and under his care. It was zealously contended, that a warehouseman, notoriously not the owner, who forwards goods, and gives a bill of them to be delivered on payment of carriage, as was done in this case, is not liable to the carrier for his hire — and so the judge expressly told the jury — but no rule is so general, that a state of facts may not exist, which make it an exception to the rule. It was distinctly testified by two witnesses, that when Ralston left the goods, he told Layng not to forward them, that he would send teams for them. Before Stewart arrived at Indiana, the owners of the goods, for Ralston was acting for others beside himself, had loaded five wagons with clover-seed, flaxseed, &c. &c., and sent them on; and they were on their return to take the store-goods at Layng’s to Indiana. Layng’s clerk swore, that before Layng put the goods into Stewart’s wagon, he reminded him of Ralston’s orders not to send the goods on; that he would send teams for them. About thirty miles on thjs side of Indiana, Ralston, who had sent on his five teams several days previous, met Stewart and the man who was with him, also loaded as Stewart was. After hearing that they were loaded by Layng, he asked for their bills of lading, on which he wrote directions to one of the owners, to receive the goods, but not to pay the carriage — he would settle that with Layng. He also requested to assist in getting a return load for the wagoners. The plaintiff below, Stewart, brought a receipt for the delivery of the goods. When he returned, Layng told him “ he ought to have held on to the goods.” To have kept the goods in his wagon, and staid with his team, to have rented a room and employed a person to take care of them, or to have brought them back in his wagon, would not have been to the advantage of Layng. Ralston came to this place, and Stewart sued him; but on ascertaining the facts, he abandoned that suit, and brought this action. It is not worth while to be learned on very plain matters. The cases cited show that, if an. agent goes beyond his authority, and employs a person, his principal is not bound, and in such case the agent is bound. Here Layng went directly contrary to the directions of Ralston; and he himself was bound to pay Stewart for his labour — no other person was bound.

The cases everywhere show that the clause, “ he paying freight,” is introduced for the benefit of the carrier, not of the consignor; no case has shown that the master is to keep his ship and sailors at expense in a foreign port, or a wagoner is bound to stay with his team, or hire a house in a distant town, until he. tries a law suit. There may be cases in which he cannot recover against his consignor; but this is not one of them. I will here observe that-in the case in 10 Watts 384, in the second sentence of the opinion of the court, it was ruled upon the authority of (a number of cases there cited) that the stipulation in a bill of lading, for delivery on payment of freight, is not introduced for the benefit of the consignor, &c. The word ‘ not’ is omitted by the printer, but this would be apparent to the attentive reader.

Judgment affirmed.