24 Me. 412 | Me. | 1844
The opinion of the Court was drawn up by
The first of these actions is replevin for sixty-seven barrels of flour; and the other is assumpist for the freight of a cargo of flour, corn, &c. of which the sixty-seven barrels were a part. The first was commenced by the general owner of the cargo, against the defendants, as owners of the
The flour detained, having been taken from the possession of the master of the vessel, in which the same was imported, by the action cf replevin, Wheeler & Sons instituted their action of assumpsit to recover the amount of the freight supposed by them to bo due.
The evidence in both suits being nearly or quite identical, they were opened together to the same jury; but, upon a development of the evidence, the causes were taken from the jury : and the parties agreed, that the Judge presiding should report the evidence for the consideration of the whole Court; and that such inferences might be made by the Court, as a jury might make from the facts proved; and thereupon such adjudication should be made as might be in conformity to the legal rights of the parties, upon nonsuit or default.
It appears that Wheeler & Sons, on or about the first of September, 1840, had despatched the vessel, called the Sultan, with a cargo of plaster, &c. to Wilmington, (.Del.) and on that day Barnard, one of the firm of Barnard & Pike, took from Wheeler & Sons an open letter, addressed to W. T. Wheeler, then residing and doing business at Wilmington, in which it was stated by Wheeler & Sons, that they had agreed with Barnard & Pike to take, in the Sultan, what com and flour they might wish; they to fill her up, if desired, at twenty-five cents per barrel for flour, and five cents per pusliel for com ; and to load at Philadelphia, if desired, to be delivered at Calais, Maine; provided Barnard should arrive in time to meet the vessel on her arrival out. Barnard arrived in .Philadelphia, and also at Wilmington, before the Sultan reached the latter place. At Philadelphia he shew his open letter to the corres
On the arrival of the Sultan at Philadelphia she was fully laden by Barnard with corn, flour, bread, cigars, tobacco, yarn, coffee, shot, apples and oakum; and the captain, as must be presumed, supposing the agreement with W. T. Wheeler to-be obligatory, signed bills of lading in conformity to it. The cargo arrived at Calais, and was there delivered, with the exception of the sixty-seven barrels of flour, which were detained to secure the payment of a reasonable freight for the items of the cargo imported, amounting, as was claimed, to a considerable amount beyond the (¡¡200, tendered; and it does not seem to have been questioned, that a reasonable freight would have exceeded the amount tendered; for the defence was based wholly upon the supposed obligatory effect of the agreement with W. T. Wheeler. If the two hundred dollars would have been adequate to a reasonable freight, it is not
That Wheeler & Bous might cause the Hour to be detained till such freight, as was actually due, was advanced or tendered is undeniably true; and that 1 wo hundred dollars was in fact tendered for it seems to have been placed beyond a doubt; and if no more was duo for if the action of replevin is sustained. And this depends on whether the contract with W. T. Wheeler was obligatory upon Wheeler & Bonn. If it was not, then there was no oilier contract concerning the price of transportation, than what can be gathered from the letter, borne by Barnard to W. T. Wheeler, and the conversation between Barnard, and one of the firm of Wheeler & Sons, in Philadelphia, and the ordinary price of such transportation. If the agreement signed by W. T. Wheeler was not valid, as against Wheeler &, Sons, aside from the bills of lading signed by the inp.st.er, it cannot be regarded as confirmed by them. For they were evidently made under the apprehension, on the part of the master, that it was imperativo upon him, as to the amount of freight to bo exacted. For the delivery of the cargo, as described in the bills of lading, his undertaking was absolute; but, in reference to Use freight to be paid, which is a matter regulated more frequently by tire owners of the vessel and of the cargo, and which they may always control, if he has reason to suppose they have done it, he may, as was done in this case, refer to what ho may suppose they have done to regulate it. If clearly under a mistake in so doing, it would not be obligatory upon the owners; especially if the mistake should appear to be owing to the mismanagement of the party insisting upon taking the advantage of it.
It becomes important now to inquire, whether W. T. Wheeler, in making the agreement signed by him, had authority, Under the particular circumstances of the case, to bind Wheeler & Sons to the performance of its stipulations. That W. T. Wheeler had authority generally to act as agent for them, in reference to the employment of vessels sent, or consigned by them to him, when not restricted by particular orders, his tes»
But it. appears that Wheeler & Sons, after the flour detained had been wrongfully taken out of their possession, by the replevin suit, commenced their action of assumpsit for the freight, in which a default must be entered; and judgment be entered for the amount, which may appear to be due. In such case it would not be reasonable to order a return of the property replevied, till it shall be ascertained that the remedy in assumpsit, on execution, shall fail of being complete. The action of replevin, under a nonsuit, may, therefore, be continued to await the further order of Court in reference to an order of return.
Several points, however, were insisted upon at the argument, which it may be expected that we should notice. One was, that Wheeler & Sons must be regarded as having ratified the contract, made by W. T. Wheeler, by not giving notice of a repudiation of it before the Sultan arrived at Calais. It appears that they must have received notice by letter from W. T. Wheeler, that such a contract had been made, some week or two previous to the arrival of the Sultan. It does not appear, however, that they had any notice of what Barnard &■ Pike had put on hoard of her anterior to her arrival; nor, until such arrival, and an interview with the master, could they become fully aware of all the circumstances under which the shipment had been made. Knowing, as may be believed, that the contract had been entered into directly at variance with what had been expressly in contemplation, and well understood by the parties in personal interviews between themselves, they might well be allowed to wait till they could possess themselves of complete knowledge, as to how the contract came to be
Another ground insisted upon was, that a tender of two hundred dollars, made to one Greene, with whom the sixty-seven barrels of flour had been deposited for safe custody, who did not object to delivering it because the tender was not sufficient, was effectual to destroy the right of lien in Wheeler & Sons, or in the master as their agent. But it does not appear that Greene had any authority to receive the freight. The flour was with him for safe custody only. He was but a servant employed for a particular purpose. The tender should have been made to the master, or to Wheeler & Sons. Whatever may have been the manner of Greene’s refusal to receive the two hundred dollars, it could in nowise affect the rights of Wheeler & Sons. That such storage was proper in such case is fully established by authority. Abbot by Story, 282.
Again, it was insisted, that Wheeler & Sons, by bringing an action of assumpsit for the freight, have waived their right of lien; and authorities were cited in support of that position; but they cannot be considered as maintaining it. If Wheeler & Sons had caused the identical flour to be attached, it might have been otherwise. In Story on Agency, 393, it is laid down, that an agent, having a lien upon property belonging to another- person, has his remedy as well in personam as against the property; and that he trusts both to the fund, and to the person of his principal. If, however, the lien be in the nature of a pledge for a debt, according to some authorities, (Corlies v. Cummings, 6 Cowen, 181,) it may be that the fund should first be exhausted, before a resort should be had to the person of the pledgor. But if the general owner of property, so situated, should by replevin, or otherwise, deprive the lien holder of his rightful possession, he would unquestionably subject himself to an detion for the amount due, without regard to the property pledged. Mr. C. J. Shaw, however, in delivering the opinion of the Court, in Beckwith v. Sibley & al. 11 Pick. 482, says, the creditor, “ notwithstanding the
It was further urged, that Wheeler & Sons had no right to detain the property of Barnard & Pike, for the freight of goods shipped on board the Sultan for one Curtis; and that, deducting the freight due for the transportation of his goods, the tender of two hundred dollars would have been to the full amount of the residue of the cargo, whether calculated upon the principle of a reasonable freight or otherwise; and it may be that such would have been the case. But, on looking at the bill of lading of the goods shipped to Curtis, we find, that the freight of those goods was made payable, not to the master, nor to Wheeler & Bous, but to Barnard &. Pike. And, on looking into the evidence, we find, that the freight of those goods was claimed and received by Barnard & Pike. We cannot doubt, therefore, but that the bill of lading of those goods was so filled up and signed by the master at the instigation of Barnard, at Philadelphia, under the impression, on his part, and on the part of the captain, that the w'hole vessel, by the run, was let to Barnard & Pike. They, therefore, must be regarded as having undertaken for the carriage of these goods; and, therefore, in effect, as the shippers of them to Curtis, and, after having exacted and received the freight therefor, of him, it is too late for them to insist that they are not responsible to Wheeler & Sons for the freight of the whole cargo.