19 Wend. 329 | N.Y. Sup. Ct. | 1838
By the Court,
The defendants insist, first, that no joint contract was proved to carry the goods beyond Oswego, and that as to Lake Ontario the defendants were not carriers, but were at most only forwarders by the owners of lake vessels; second, that for a loss on the lake, they could only file liable on proof of gross negligence ; third, that no wánt of diligence or care was shown; and fourth, that there was a fatal variance between the declaration and . the contract proved.
That Armstrong, acting as the agent of the defendants, contracted to carry the plaintiff’s goods from New York to Ogdensburgh was proved beyond all doubt; and the only question is, whether he had authority from all the defendants to make such a contract. On a careful consideration of the evidence, I think the jury were fully warranted in finding for the plaintiff on this point, as against all of the defendants.
Although by the contract, the defendants were not answerable for the dangers of Lake Ontario, yet, if the loss happened through the want of ordinary care or skill in lading or navigating the vessel, I think they would be liable; Did the loss happen through negligence 1 The schooner was seaworthy, and captain Tyler, the master was an experienced and very competent officer. There was the usual number of hands, though some of the witnesses thought it would have been more prudent to have had another in addition to those on board. The vessel left Oswego with a fair sailing breeze, and every thing promised a successful voyage. According to the evidence of the master and other persons on board, the schooner was capsized by a sudden squall or gust of wind, and the accident could not have
There was a variance between the contract proved and that laid in the declaration. None of the counts mention the exception of the dangers of Lake Ontario.
I think there should be a new trial; that the plaintiff should be allowed to amend his declaration, and that the costs of the former trial should abide the event of the suit.
Ordered accordingly.