| Mich. | Jan 15, 1857
By the Court,
It was insisted by the counsel for plaintiff .in error, that the question whether the marble was “ wrought ” or “ unwrought,” should not have been submitted to the jury at all; that it became the duty of the Court to instruct them that this was “ wrought ” marble, because it appeared that work had been bestowed upon it, and they now insist that these terms have a general popular meaning, which cannot be mistaken ; they mean, say the counsel, “worked” or “worked upon,” or the reverse. “ The term wrought marble means, marble upon which labor has been bestowed as contradistinguished from marble wrought from the quarry.”
We think the conclusion is not warranted, unless they rely solely upon the definition “ worked upon,” the term “ worked,” and other definitions of Webster, such as “formed, worked, or labored,” “performed,” “fitted,” all imply something more; they imply that the thing is fashioned or prepared for some general or particular use. Now I am not aware that marble thus sawed is ever used in that condition for any purpose; it is sawed into slabs preparatory to being worked, or fitted for
After all, the real question is, how were these terms understood between the contracting parties. It is true that the popular sense is to control, until it shall appear to have been used in a different sense; until that shall appear, it can never be submitted to a jury ; but, when that shall so appear, then it becomes a question of fact for them to determine upon the evidence in the case. But how does the plaintiff stand in this respect? He represents the New York and Erie Railroad Company; they received and shipped the property as “ unwrought marble.” In the absence of any testimony and unexplained, that must be presumed to have been the agreement between the parties ; that is, it must be presumed that both parties understood that it was to be shipped as “ unwrought marble.” The plaintiff, then, had to rebut that presumption' by proof. The agent of the Company was sworn in the case, and testified that it was so designated by mistake; that he, the witness, and other officers of the Company, had always regarded this species of property as properly designated by the term “ wrought.” This opened the case for further evidence, and it became a question of fact to know in what sense these terms were used by manufacturers, dealers and carriers, when applied to marble, and upon this point there was considerable evidence; and the Court could not have done less than to submit it to the jury, and it was so submitted, and the jury found against the plaintiff; and we cannot say that the verdict was wrong, nor can we say that any improper evidence was submitted to them. Most of the objections urged, are objections which relate to the kind of evidence admissible to prove the issue, as that it should have been limited to a particular place and trade. It will be presumed, in the absence of any showing to the contrary, that the charge related to, and had reference to the evidence in this case, and no objection, whatever, was
If the counsel for the plaintiff had considered this general evidence inadmissible, they should have objected; or, having failed to do that, they should have requested the Court to exclude this part of the evidence from the consideration of the jury; but, doing neither, they cannot avail themselves of their objections here. A party cannot assign error upon a general exception to the charge of the Court commenting upon evidence in the case, which was received without objection ; that would lead to the examination of questious here which had never been submitted to the consideration of the Court below, and to which their attention had never been called. So far as the record shows, it was never intimated to the Court below that the charge was exceptionable, for the reasons urged before this Court. We, therefore, think that this exception is not well taken.
The remaining error assigned, is that the Court erred in overruling the objection of the plaintiff to' the evidence offered by the defendant, showing damage to the property while in transit.
The record shows the grounds of this objection to have been, that such evidence under the issue, was irrelevant and immaterial.
The action was replevin, commenced before a Justice of the Peace. The plea was the general issue. The plaintiff claimed under that issue, that he had a special lien upon the property for freight. The defendant offered evidence to reduce the lien, by showing injury to the property while in transit.
This Court held in the case of Ward vs. Fellers (3 Mich., 281), that it was competent for the owner of property, at the suit of a common carrier for freight, to recoupe the damage done to goods in transportation. This case was not considered as extending the doctrine of recoupment beyond what is generally sanctioned by the American authorities, and a refusal to apply the doctrine of that case to the case at bar, would lead to a great inconsistency. By the law as established in that case, the owner of goods would be entitled to a delivery of thein upon a tender of the freight, less the amount of the damage done to the goods. By such a tender, the lien would be discharged.; but though the lien should thereby be discharged, and the owner should be entitled to the possession of his goods, it could be of no benefit to him, unless the bailee would consent to deliver them up; for the only adequate remedy, in case of refusal, would be to replevy the goods ; and the moment he does that, if the doctrine contended for in this case be true, that moment his right is lost.
It is true, that the right of the plaintiff to show his damages to the extent of the lien, in this form of action, is not, strictly speaking, recoupment; for that term is expressive of a right of a defendant to deduct or abate from the plaintiff’s damages, any right of action which the defendant may have, growing out of the same transaction, founded
The real issue in this case, is the amount of the lien. It is precisely the same as was in the case of Ward vs. Fellers, and as would have been in this case, if the defendant had brought suit for freight.
The case of Baggs & Russel vs. Martin (13 B. Mon., 239),is in point. In that case the Court say: “As the defendant claimed the right to retain possession of the goods until the freight due was paid, the plaintiff had the right to introduce proof to show the extent of the damage done to the .goods, for the purpose of reducing the amount of freight actually due on that account, thereby manifesting that the defendant had no right to the possession of the goods.”
Upon the question of the right of the defendant to recoup, in a suit brought by a carrier to recover freight, there is some conflict of authority. But, whichever way the weight of the authority may be, upon a careful examination, is now of no consequence, for with us the question is at rest; and having recognized that right in the owner of property, it follows, upon principle, that the benefit thereby secured is not dependent upon the form of action.
The judgment of the Court below must be affirmed, with costs of this Court.