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Opinion of the Court, per ALLEN, J.

defendant was not to apply the avails of the lumber, and that the law knew no difference in the obligation of one party to keep his promise more than another. He intimates, however, that if there was some subsequent agreement between the parties that the plaintiff should not be required to perform his engagement, as contained in the condition of the bond, it might be different, and says that it was not pretended that there was any such agreement either express or implied. He further says: “It is not alleged that at this time (in December when the accountable receipt was given) there was any agreement, if the timber was not sold and the money received before the bond became due, that the money should be paid over to the plaintiff, leaving the installment due to the defendant on the first of January unpaid.” He shows very clearly that such is not the legal effect of the undertaking of the defendant as expressed in the receipt, and rests his opinion upon this branch of the case, that this receipt was the consummation of a new arrangement, and superseded a former agreement in which it was claimed the agreement not to apply the proceeds of the lumber upon the bond was made, and that in fact there was no agreement which forbid the set-off. This opinion was concurred in by the president and fourteen senators. Eleven senators were for an affirmance of the judgment of the Supreme Court, upon the ground taken at the circuit, that a set-off was not admissible in the action. The case is not an authority upon any question presented by this appeal, except as the opinion of the Supreme Court upon the abstract proposition in favor of the plaintiff here, and the intimation of the chancellor that in a case like this a valid agreement might be made not to set off a demand against the plaintiff's debt. Here the debt of the plaintiff's assignors to the defendants was past due at the time of the agreement, and their promise had already been broken, and the arrangement necessarily contemplated their inability to pay at any particular time in the future, and that indulgence was to be given; and that the debtors should, to a limited extent, have the benefit of their

Opinion of the Court, per ALLEN, J.

earnings which should come to the defendants' hands, free of all claim of the latter to apply them upon their debt. But we have a direct authority adverse to the claim of the defendants, and the effect claimed from the English cases in Henniss v. Page (3 Whar., 275), approved in Louden v. Tiffany (5 W. & S., 367). The decision is well expressed in the syllabus of the case as follows: "In debt on bond by A., assignee of B., the obligee, against C., the obligor, it appeared that at the time of giving the bond a settlement was made, and releases executed, of all claims which A. and B. had against C., and which C. had against A.; and A. having said, “Now you

will go and buy another judgment against me,' C. replied, “I will not buy any judgment against you ; I will

pay

the bond when it becomes due.' Held that after this agreement, C. could not set off a judgment against B., which was assigned to him after the execution of the bond.” The judge, in assigning the reasons for the judgment, reviews the cases cited to us, and is of the opinion that if in Eland v. Karr there had been an express agreement not to purchase and set off other claims, the decision would have been different, but irrespective of that consideration, he said the court was neither trammelled by the authority, nor convinced by the reasoning of the cases cited. He was of the opinion that “a court of justice was never better employed than in sustaining the principles of good faith, and in discountenancing fraud or breach of contract.” The plaintiff here stands in the place of his assignors, who were probably compelled to make the assignment to avail themselves of the provision for their necessities, which they had expected and were entitled to receive from the defendants.

The exclusion of the evidence offered to prove the circumstances attending the withdrawal of Houghtaling from the employ of Gutchess & Yawger was not erroneous, and the evidence, if it had been admitted, could not have varied the result. Houghtaling was the mere clerk and agent of Gutchess & Yawger, and had no interest in the business as a partner or otherwise. The retention of his services by Gutchess &

Statement of case.

Yawger was no part of the contract, and his agency was not necessary to the substantive performance of the agreement by the contrary parties. The only effect claimed now for the offered evidence is, that it would have tended to prove a complicity of Gutchess & Yawger with Houghtaling in a breach of the contract, but the answer to that is, if it should be conceded that such would be the tendency of the evidence, which is not very apparent, that the referee has not found any such agreement as is claimed by the defendants, and therefore there could be no breach.

The order of the Supreme Court, granting a new trial, must be reversed, and the judgment on the report of the referee affirmed.

All concur, except FOLGER, J., not voting.
Order reversed and judgment accordingly.

The Ærna INSURANCE COMPANY, Respondent, v. WILLIAM

A. WHEELER et al., Appellants.

Where a common carrier contracts for the transportation of freight over

his route, and for the delivery thereof to another carrier to be forwarded over connecting lines to its ultimate destination, the fact that the contract fixes the price for the entire carriage does not make the contract a through contract, so as to entitle the succeeding carriers to the benefit

of exceptions from liability contained in the contract. Where there is an agreement between two common carriers, operating

connecting lines, for the carriage of freight over both routes at an agreed price to be divided between them, and where they have, at the point of connection, a warehouse used in common for the transfer of freight from one line to the other, the expenses of handling being paid in common, a delivery of freight at the warehouse by one carrier destined to pass over the line of the other, with notice to the latter of its arrival and ultimate destination, places it in the possession of the latter, and imposes upon him the duties and liabilities of a common carrier in reference thereto.

Argued May 31, 1872; decided June 11, 1872.)

Statement of case.

APPEAL from order of the General Term of the Supreme Court in the third judicial department, reversing a judgment in favor of defendants entered upon the report of a referee and directing a new trial.

The action was brought to recover the amount of insurance paid by plaintiff upon a quantity of flour shipped at Milwaukie for Boston, and alleged to have been destroyed by fire at Ogdensburgh while in the possession of the defendants as common carriers. The flour was shipped upon one of the boats of the Northern Transportation Company, which company ran a line of propellers from Milwaukie to Ogdensburgh, where it connected with the Northern Central railroad for Boston. The road was run and operated by defendants. The railroad and propeller line ran in connection under a pro rata agreement as to freight. The substance of the bill of lading and the facts pertinent to the questions decided appear in the opinion.

L. Hasbrouck, Jr., for the appellants. Defendants' delay, after notice from the Northern Transportation Company, in forwarding the flour cannot make it liable. (Wibyert v. N. Y. & E. R. R. Co., 12 N. Y., 245.) The special exemption against loss by fire in the bill of lading was valid. (Dorr v. New Jersey Steam Navigation Company, 1 Kernan, 485; Bissell v. N. Y. Central, 25 N. Y., 442 ; Lee v. Marsh, 43 Barb., 102; Steinway v. Erie Ry. Co. [Ct of Appeals], N. Y. Transcript, April 17, 1871.) This was an entire contract to carry the flour from M. to B., which the Northern Transportation Company was obliged to fulfill. (Russell v. Liv. ingston, 16 N. Y., 515.) If defendants were subject to any duty or responsibility in respect to the flour, it was only under the contract of the Northern Transportation Company with the owner, and defendants are entitled to the benefit of all stipulations in such contract affecting its liability. (Manhattan Oil Co. v. Cam. & Am. R. R. Co., 52 Barb., 73; 5 Abb. Pr. R. [N. S.1, 259; Collins v. B. & Exc. R. Co., 25 L. J. R. Exch., 185; 29 id., 41; 7 H. L. Cases, 194; Bald

SICKELS—Vol. IV. 78

Statement of case.

win v. U.S. Tel. Co., 1 Lans., 130; Thornton Check v. Little Miami R. R. Co., 7 Am. Reg., 427; Caxon v. Gt. W.R. Co., 5 H. &. N., 274; McMullen v. M. S. & N. 1. R. R. Co., 16 Mich. [3 Jerm.), 79, 123; Magee v. Cam. & Am. R. R., Albany Law Journal, Sept. 9, 1871, p. 113.)

George B. Hibbard for the respondent. Defendants are liable as common carriers, as receivers they were not officers of the court, if they were they would be liable in this action. (Sprague v. Smith, 29 V., 421; Blumenthal v. Brainerd, 38 id., 403; Lamphier v. Buckingham, 33 Conn., 237; Rogers v. Wheeler, 43 N. Y., 598.) The flour when burned was in defendants' possession as common carriers, and they were liable to plaintiffs for its loss. (Hart v. W. R. R. Co., 13 Metc., 99, 108; Home Ins. Co. v. N. W.T. Co., 4 Robt., 257; Wing v. N. Y. & E. R. R. Co., 1 Hilt., 235; Green v. Clark, 2 Kern., 343; Root v. G. W.R. R. Co., 2 Lans., 199; Coyle v. W. R. R. Co., 47 Barb., 152; Hempsted v. The N. Y. C. R. R. Co., 28 id., 485; Michaels v. The N. Y. C. R. R., 30 N. Y., 564; Richardson v. Godard, 23 Howard, Sup. C. U. S., 28, 39; Fitchburg & W. R. Co. v. Hanna, 6 Gray, 539; Ang. on Car., $ 131 ; Blossom v. Griffin, 3 Kern., 569; Ladue v. Griffith, 25 N. Y., 364; Converse v. N. Y. Co., 33 Cow., 166, 182; Trade v. Wheeler, 3 Lans., 201; Fenner v. B. & S. L. R. R. Co., 44 N. Y., 505, 507, 508; Hartman v. Proudfit, 6 Bosw., 191.) Defendants were liable, whether they or the Northern Transportation Company, as between themselves, were in the precise technical possession of the property. (Fairchild v. Slocum, 19 Ward., 329 ; 7 Hill., 292; Champion v. Bostwick, 11 Wend., 571 ; 18 id., 175; Ladue v. Griffith, 25 N. Y., 364; Hart v. The R. & S. Co., 4 Selden, 37; Fitchburg & W. R. Co. v. Hanna, 6 Gray, 539; Cobb v. Abbott, 14 Pickering, 289; Murchamp v. The L. & P.J. R. Co., 8 Mees. & Wels., 421; Merrick v. Gordon, 20 N. Y., 93; Bristol v. R. & S. R. R. Co., 9 Barb., 158.) Defendants not having pleaded the non-joinder of the Northern Transportation Company as defendants, it is

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