Blin v. Mayo & Follett

| Vt. | Jan 15, 1838

The opinion of the court was delivered by

Williams, C. J.

The charge of the Court below, on the first count, has been objected to, because the Court told the Jury, that if the goods had been disposed of by the defendants, and "not returned, the plaintiff would be entitled tore-cover, and it is said, that in either case, the verdict should have been for him. The charge, however, is, in 'effect, that the Jury must find a conversion. The latter expression, in relation to ' not returning, was probably redundant, as the flour, if it had been converted and disposed of by the defendants, was not returned. A demand and refusal is only evidence of a conversion. If the Jury had been instructed that the plaintiff was entitled to recover, on the ground that the defendants had not [returned the goods to the plaintiff, it would have been erroneous. As a demand is found in the Gase, the charge was undoubtedly correct.

On the second count, the charge wás, in silbstance, as contended for by the plaintiff; that, if the flour came into their possession, as wharfingers, they were liable therefbr. It may well be doubted, whether the duty of a wharfinger is as severe as has been contended for. The expression of Lord Mansfield in Ross v. Johnson, 5 Bur. 2827, and of Lord Ellenborough in Maving v. Todd, 1 Starkie R. 72, countenances the idea, that their liability is the same as common carriers. This opinion is ably combatted by Judge Story, in his commentaries on bailments^ and by the Reporter, in a note to the case of Platt v. Hibbard, 7 Cowen, 502. Wharfingers frequently combine the character of wharfingers, warehouse-men, and common carriers. In the case of Maving v. Todd, the defendants were lighter-men, as well as wharfingers, and in the former character, they were common carriers, and probably, were liable as such, in that case. The expression of Lord Ellenborough may have had reference to them as lighter-mien. The liability of a wharfinger is, probably, like that of a warehouse-man, who is responsible alone for a want of ordinary diligence, and not like that of a common carrier, who is liable for all losses, except such as happen by-the act of God, or the public enemies. Whatever may be the liability of wharfingers, it was clearly necessary to establish the fact, that, as such, the flour in question came into their possession. The charge for wharfage, if made from the shipping list, and not from inspection, was not evidence sufficient to prove that fact. A mere delivery of goods at the wharf, is not, necessarily, a delivery to the owners, as wharfingers. This was holden in the case of Buckman v. Levi, 3 Camp. 414, and Gibson v. Ingles,, 4 Camp. 72. The usages of business, in the vicinity, are of importance to shew when a wharfinger acquires, and when he ceases to have, the custody of goods in that capacity, as in the case of common carriers. The cases are numerous where evidence, as to the usages of business, is received to shew when goods are considered as delivered to, and received by, common carriers, and when their liability commences. The same evidence is also received to determine the question of ordinary .diligence. The same acts in one place, where the usages are conformable thereto, would be considered as evidence of great negligence, and in another, as evidence of ordinary care and prudence. By the usages and customs of business is not understood to be meant such customs, as, from their long continuance, have become part of the common law, bút such customs, and usages as are generally regarded and adopted by the persons doing business in the vicinity, and with reference to which contracts are made. The evidence of the customs and usages of the merchants, in the vicinity of the defendant’s wharf, was .properly received to shew that goods, landed on the wharf, (as was the flour in this ease) were not considered as in their custody, and that they do not receive and take care of them, as wharfingers. The goods were in transitu from the ship to the custody of the plaintiff, and he, undoubtedly, was aware of the usage, as he called for the flour the same morning it was landed. The jury have found that the flour was not received by, nor into the custody of, the defendants, as wharfingers, and these were facts for them to find. We see no error in the charge, of which the plaintiff can complain.

The Judgment of the County Court is, therefore, affirmed. ,