16 Mo. 484 | Mo. | 1852
delivered the opinion of the court.
The defendant, Swinney, was part owner of the steamboat Wapello, and Eaton the master. - She was employed as a weekly packet between Glasgow and St. Louis. Eaton contracted, as master, in 1846, with the plaintiff Collier, to transport the tobacco which Collier then had at Glasgow, to St. Louis, for two dollars and fifty cents per hogshead ; and such other tobacco as Collier might deliver at Glasgow on or before the first of September, was to be transported to St.
It appeared in evidence that the Missouri became too low for a boat as large as the Wapello to navigate it, as early as the month of July, and continued low until after the first of September, although other boats continued to ply upon it, and transport freight during all that time. It also appeared that, during that period of low water, and after the first of September, the plaintiff shipped on other boats a part of the tobacco which the Wapello was to carry.
The court, at request of defendant, gave the following instructions :
“ If the jury find from the evidence that, after the making of the contract, and before there was any breach thereof, the river became so low as to prevent the steamer Wa-pello from carrying the plaintiff’s tobacco from Glasgow to St. Louis, this was an act of God which excused the defendant from the performance of his contract, and the jury must find for the defendant.
“ The jury must disregard, as any evidence in the cause, all testimony going to show that the defendant contracted to carry out the plaintiff’s tobacco, notwithstanding the river should become too low for the Wapello to run, and all testimony going to show that the master of the boat contracted to carry out the plaintiff’s tobacco on another boat, in the event of the river becoming too low for the Wapello to run.
*487 “If tbe plaintiff delivered at Glasgow three hundred and forty-one hogsheads of tobacco on or before the first day of September, 1846, under the alleged contract, and the defendant was prevented by the low .water from carrying out all this tobacco, during the year 1846, and the plaintiff, during the same year, and before the rising of the water so as to enable the Wapello to run, shipped ninety-eight hogsheads of the tobacco on other boats, on his own account, he thereby put an end to the contract, and the Wapello, even if able, was discharged from her obligation to carry out the balance of the tobacco thereafter.”
The court, of its own motion, gave this instruction :
The court instructs the jury that, if they believe from the evidence that Nathaniel J. Eaton, as master of the steamboat Wapello, in May, 1846, agreed with plaintiff for the price of two dollars per hogshead, to ship and carry all the tobacco in hogsheads which he, the plaintiff, should deliver at Glasgow, between that time and the first day of September in the same year, to St. Louis, in a reasonable time after the delivery of the tobacco at Glasgow, and that said Eaton did not ship and carry said tobacco from Glasgow to St. Louis, as contracted, and that, at the time of making said contract, William D. Swinney was a part owner of the said Wapello, they should find for the plaintiff, unless they should believe from the evidence that, before there was any breach of said contract, the Missouri river became so low that it rendered it impossible for the said boat, Wapello, to carry said tobacco from Glasgow to St. Louis.
A proper interpretation of this contract is, that the tobacco brought by Collier to Glasgow .for shipment to St. Louis, should be transported to St. Louis in a reasonable time after the delivery of each lot at Glasgow, and not that the reasonable time for transportation was to commence after the first of September. It appears by the testimony of the witness, (Garth,) who proved the contract, that the agreement to trans
It appears that the express contract in this case was to transport the tobacco in a reasonable time. The reasonable time spoken of has no reference to the size or the qualities of the Wapello, as eauses for the extension of the time. As the master must be understood to have contracted that his boat should carry the goods, the contract must be understood to mean that his boat should be able to carry them in a reasonable time for such transportation. If there was any thing peculiar in the construction of his boat, or if she was of a larger size than ordinary, the risk of delay from such causes is not to be thrown on the oymer of the goods. The question as to time, under this contract, is, what was a reasonable time, after the delivery of the tobacco at Glasgow, for Collier to have it delivered in St. Louis, under all the circumstances ? If navigation was entirely suspended when he delivered it, then the computation of the reasonable time would commence upon its re-opening ; if the water was so low as to render the transportation sIoav and difficult, then the time must be longer than if the water was high. But when the. reasonable time is thus ascertained, the master of the Wapello must be understood to have contracted that she would, within that time, transport the tobacco to St. Louis. The Circuit Court seems to have entertained the idea, that, as the transportation was to be on the Wapello, the reasonable time was to be computed with reference to her size and qualities, which would have the effect of throwing upon Collier all the consequences of her defects or unfitness for the navigation. Nay, it is even put more strong
The judgment, with the concurrence of the other Judges, is reversed and the cause remanded for further proceedings.