Allen v. Sewall

2 Wend. 327 | N.Y. Sup. Ct. | 1829

By the Court, Savage, Ch. J.

This is an action on the case against the defendants as common carriers, under the act of incorporation of the Dutchess and Orange Steam-boat Company ; the sixth section of which act is as follows : “ And be it further enacted, that the members of the said corporation shall be liable individually, in the same manner as carriers at common law, for the transportation of all goods, wares and merchandise, delivered to the agents of the said corporatian, and for all contracts which shall be made by such agents reiatmg- to the business of the said corporation.”

The plaintiffs were, in the course of their business, in the practice of sending large sums of money in bank bills from New-York to Albany by the steam-boats, and usually by the steam-boat Constellation, Captain Cruttenden. On the 15th November, 1826, the plaintiffs’ clerk delivered to Captain Livingston, of the steam-boat Sun, a packet containing in bank bills $14,347 50, and a check of $1800, with a request that he would deliver it to the person to whom it was addressed, at Albany, which he promised to do; and being informed that it was very valuable, locked it up in a drawer in his office. The Sun did not sail that day, and the letters and packets put on board of her were sent by the Richmond steam-boat. The packet in question never reached its destination, but was lost; and several questions are raised: 1. It is said that a suit will not lie against the defendants, being a portion of the stockholders; that it should have been brought against all the stockholders, or against one individual. I apprehend it was the intention of the legislature to put the defendants upon the same footing as to liability, as if they had not been incorporated. Individual liability in the act must be understood in contradistinction to corporate liability, and the defendants must therefore be held responsible to the same extent, and in the same manner as if there was no act of incorporation. The plaintiffs undoubtedly might have sued the corporation, but they had their election under the sixth section of the act to consider the association an unincorporated copartnership. It is true that the plaintiffs should have brought their suit against all the copartners, as this is an action quasi ex contractu; but this error of the plaintiffs can be taken advantage of only by plea in abatement; The defendants’ counsel have indeed referred us to some of the cases in which it was decided that want of joining all the partners as defendants might be taken advantage of on the trial upon the general issue, but the practice has been otherwise since the case of Rice v. Shute, (5 Burr. 2611.) It was there held, that the non-joinder of all the partners, defendants, must be pleaded in abatement. “ A creditor knows,” says Lord Mansfield, “ with whom he dealt, but he does not know the secret partners. He may be nonsuited twenty times before he learns them all, or driven to a suit in equity for a discovery who they are.” (1 Saund. 291, b. n. 4, 5 Bos. & Pul. 364, 2 Bl. 947, and Seymour v. Minturn, 17 Johns. R. 174, in which the point was conceded upon the argument.) In the latter case, Spencer, Ch. J. says, “The objection could have been taken only under a plea in abatement. The case of Rice v. Shute, which has never been questioned, is decisive.”

2. The plaintiffs having abandoned so much of their claim as relates to the check of $1800, the next question is, whether bank bills are “goods, wares and merchandise.” The term goods is synonymous with personal chattels ; and “ bona et catalla,” it is said, although they do not, of their proper nature, extend to charters and evidences concerning freehold, or inheritance, or obligations, or other deeds or specialties, being things in action, yet in the case of an innkeeper’s liability, they do extend to such obligations ; “ and if one brings a bag or chest of evidences into the inn, or obligations, deeds, or other specialties, and by default of the innkeeper, they are taken away, the inkeeper shall answer for them, and the writ shall be bona et catalla generally, and the declaration shall be special.” (8 Co. 65.) Money hath been accounted to be goods and chattels; though things in action are not generally accounted goods and chattels. (Jacob's L. D. tit. Chattels.) This court has considered bank bills money, and held that as such they may be levied on by an execution. (12 Johns. R. 220.) Money is there decided to be goods and chattels ; “ and' it appears to us,” says Spencer, J., “ to comport with good policy as well as justice, to subject every thing of a tangible nature, excepting such things as the humanity of the law preserves to a debtor, and mere choses in action, to the satisfaction of the debtor’s debts.” Here the court expressly distinguish between bank bills and choses in action, calling the former money ; and that a person may be a common carrier of money as well as of other property, is decided, 11 Johns. R. 109.

The liability of the defendants is, by the statute, the same as that of common carriers, and common carriers are responsible for the safe delivery of all goods entrusted to them or ^h’ agents or servants, unless the loss is occasioned by the act of God or a public enemy. (11 Johns. R. 109.) There needs no particular agreement for hire to render a common carrier liable, because, when there is none, the carrier may have a quantum meruit for it. (2 Show. 129.) Nor is there any ground for an imputation of fraud or concealment as to the contents of the packet. In some of the cases cited, there seems to have been a fraud practised in concealing the fact that money was sent, and such fraud exonerated the carrier. Thus, in Gibbon v. Paynton, (4 Burr. 2300,) £100 was concealed in a bag with hay; the price for carrying money was three pence per pound, and the coachman, the defendant, had given notice that he would not be accountable for money unless he was informed that money was delivered to him to be carried. Lord Mansfield held the defendant not liable, no notice having been given that money was sent by him, and the plaintiff being cognizant of the defendant’s advertisement as to the terms on which he would agree to be liable. So it was said by King, Ch. Justice, (1 Str. 145,) “If a box is delivered generally to a carrier, and he accepts it, he is answerable, though the party did not tell him there is money in it. But if the carrier asks, and the other says no, or if he accepts it conditionally, provided there is no money in it, in either of these cases I hold the carrier is not liable.” In this case, the plaintiffs’ clerk told captain Livingston that the packet was a very valuable one ; no objection was made to carrying it on that account; it was received. Nothing was said at the time about compensation. The practice was either to receive compensation upon delivery of the -packet, or at the end of the season.

3. The principal point, therefore, is whether the money in question was delivered to the captain of the Sun as the agent of the defendants %

It is not denied that captain Livingston was the general agent of the defendants in relation to the common and ordinary business of the steam-boat Sun. That boat carried passengers and light freight, and it was the general practice of all the steam-boats which Carried passengers to carry money. It seems to have been a general understanding between the proprietors and the captains, that when specie was carried, the freight went to the proprietors; and when bank bills Were carried, the captains received the compensation without accounting for it. This arrangement seems to have been general among the steam-boats, but no notice of such an arrangement was ever published; nor was such notice ever given to the plaintiffs. In both cases the captains received the payment; in one case they accounted for what they received, in the other they did not. Can this be any thing more than a private arrangement by which the captain’s compensation is ascertained 1 Suppose, by arrangement between the captain and the proprietors, and known to no others, he was to receive all the pay for small freight, could that discharge the proprietors from their liability 1 Certainly not, unless the owner of the goods knew that the captain received them on his own account, as part of his privilege, and not as agent for the owners. It was said by Holt, Ch. Justice, in Middleton v. Fowler, (1 Salk. 282,) “that this action did not lie against the master, and that a stage coachman was not within the custdm as a carrier is, unless such as take a distinct price for carriage of goods as well as persons, as waggons with coaches ; and though money be given to the driver, yet that is a gratuity, and cannot bring the master within the custom; for no master is chargeable with the acts of his servant, but when he acts in execution of the authority given by his master, and then the act of the servant is the act of the master.” The facts contained in the case before lord Holt were, that the plaintiff took a seat in a coach and delivered his trunk to the driver who promised to.take care of it, but lost it. From the manner in which Holt expresses his opinion it was evidently not a case in which money was paid as a reward for the service rendered; he speaks of a gratuity to the driver, which must have been for a service not connected with his duty as driver. The case is very briefly reported, but probably, in England as in this country, the proprietors had given notice that they would not be liable for the baggage of the passengers, ancl had made no charge for it; and then indeed, though money be given to the driver, that would not charge the proprietors. It is, however, useless to speculate upon the various cases cited on the argument. The fact of the plaintiffs’ liability for freight to the proprietors is, I think, unquestionable. The boat was theirs, the captain was in their service upon wages, not as a charterer ; and how he received his wages, seems to me no more a matter of concern to the plaintiffs or the public than the amount of those wages. It is of no consequence whether the master is rewarded for his services by wages paid by the owner, or by receiving part of the earnings of the ship. (Abbott, pt. 2, ch. 2, § 6.) The rule deduced by Abbott in the above section is, that the owners are bound by every lawful contract made by the master relative to the usual employment of a general ship. By the Roman law a distinction was taken as to contracts which the owners authorized the master to make and those which they did not authorize ; but, in general, they were answerable for all acts of which character and situation afforded the presumption of authority, even if he contravened the orders received from them, unless the party with whom he contracted were acquainted with the orders by which his authority was restrained. (Abbott, pt. 2, ch. 2, § 3.) Upon similar principles this court decided the case of King v. Lenox, (19 Johns. R. 235, 6 :) “ The owner of a ship is bound for the lawful contracts of the master when made by him relative to the usual employment of the vessel, both on the ground of such employment and of the profits which they derive from it, and the course of usual employment is evidence of authority given by the owners to make a contract for them. The plaintiffs in this case,” say the court, “ contracted with the master himself, knowing that he received their goods on his own account, as part of his privilege, and not in his character as agent for the owners.” “ The ship was freighted wholly by the owner, and the master had no authority from the defendants to receive goods on freight.” That case, it will be perceived, was very different from this ; the ship was not a general ship, but wholly freighted by the owner. The master liad a privilege which was known to the plaintiffs, and he shipped his goods as part of the master’s privilege; he dealt with the master on his own responsibility, not as agent for the owner. There is no evidence in the case now before us that the plaintiffs knew any thing about the captain’s privilege, or that they contracted with him on his individual liability and not as agent for the owners. Besides, the steamboat Sun was a general ship: she was not laden by the owners, nor were they any of them managing the concerns of the lading of the vessel; the captain and no other person had control of that business.

The cases of Walters. Brewer, (11 Mass. R. 99,) and Reynolds v. Tappan, (15 id. 370,) contain no principles opposed to those which I have considered sound. The former was in some respects like the case of King v. Lenox. The defendant was owner of the ship and loaded her himself. She was not a general ship, and the goods for which the plaintiff prosecuted were taken on board clandestinely during the temporary absence of the defendant. The court held that the owner was not liable for goods clandestinely taken on board by the master, the owner being present and having the management of the voyage himself, leaving nothing to the master but the care of sailing and directing the ship herself; and especially where the ship is not a freighting ship, and when the shipper might have known the limited authority of the master. In the latter case it was decided that the owner is not liable merely because he is owner, but it must appear that the vessel was in his employment, and that the master was appointed by him and acted within the scope of his authority. In that case the owner was sought to be charged for losses sustained when the vessel was chartered to another, and employed by the charterer. And it was there held that the owner is never liable unless the master was authorized to carry goods for hire. In the case now before the court I consider the facts abundantly shewn that the Sun was a general vessel. She carried not only passengers but goods for hire. The secret instructions given to the captain not to take money cannot avail the defendants, notice of such instructions not having been published or brought home to the knowledge of the plaintiffs. His general situation was that of general agent—master of the vessel, which carried goods for hire; the presumption, therefore, without notice to the contrary, must be that he was clothed with the usual authority of a master of a general vessel; and as such it cannot be doubted that the owners are bound by his lawful acts within the scope of his general authority. The cases cited by the defendants’ counsel from 4th and 5th Barn, and Aid. are cases where notice had been given by the owners, which qualified their responsibility. The case of Satterlee v. Groat, (1 Wendell, 272,) is not an authority for the defendants. There the defendant was not considered a common carrier, but one who had sent his team upon a special contract. The case of Dwight v. Brewster, (1 Pick. 50,) is more in point, where it was held that the practice of carrying parcels not belonging to passengers for hire in a stage coach, constitutes the proprietors common carriers ; and that notice that the parcel was as valuable as money was equivalent to saying that it was money.

On the whole, therefore, it seems to me that the law is with the plaintiffs. The defendants being owners of the boat of which Captain Livingston was master ; having appointed the master of the boat; the boat being in the employment of the defendants ■; being a general vessel; carrying not only passengers but light freight and parcels for hire, the defendants are common carriers, and answerable for all goods shipped on board their vessel, unless lost by inevitable accident, or the enemies of the country. The general custom prevailing among the captains and proprietors of steam boats, to allow the avails of carrying bank bills to captains as a privilege, cannot avail the defendants, 1. Because there could be no such rule between them and Captain Livingston, if he never carried money; and 2. Because, if he did carry money, the proprietors are bound by the acts of their general agent, and this arrangement was only the mode of paying him his wages. All the cases cited in which the owners are held not liable by the acts of the master, are those in which the ship was not a general ship, but was freighted by the owners, and the master contracted to carry, as part of his privilege, and this known to the shipper.

I am, therefore, of opinion that though this may be one of those cases, in the language of Lord Mansfield, “ quad durum videbatur circurnslantibus,” (4 Burr. 2301,) yet that well established principles decide it against the defendants, and that the plaintiffs are entitled to judgment.