Little v. Semple

| Mo. | Jul 15, 1843

Napton, Judge,

delivered the opinion of the Court.

The plaintiffs brought an action of assumpsit in the, St. Louis Court of Common Pleas, against the defendant, as one of the owners of the steamboat Meridian, upon a contract of affreightment. The plaintiffs shipped upon said boat, at Pittsburg, one hundred kegs of nails, of the value of five hundred and thirty-nine dollars and thirty-seven cents, to be delivered in- good order at the port of Galena, in the State'of Illinois, (the dangers of river navigation, fire, and unavoidable accidents excepted,) to the plaintiffs or their assigns, they paying therefor at the rate of fifty cents per keg, with privilege of re-shipping. The-nails were re-shipped at St. Louis, upon the steamboat Illinois, with the privilege of deviating as far as Jefferson barracks, which is about ten miles out of the direct course to Galena: the Illinois did deviate thus far, and after leaving Jefferson barracks, on her voyage to Galena, struck a rock and sunk, whereby the nails were lost.

The defendant filed several pleas, in substance averring, that the said goods were shipped on the Meridian, with a privilege of re-shipping the same at any time during the voyage ; and that, during the said voyage, whilst safely conveying such goods, she did re-ship the goods on board the Illinois, a good and staunch boat, then bound for, and about to proceed to Galena, to be safely carried and delivered according to said contract, &c.

- To all these pleas there was a demurrer. The demurrer was overruled by the court, and the defendant had judgment on the demurrer. The sufficiency of the pleas is therefore the only question presented by the records, and this depends upon the construction of the words, u with privilege of re-skipping,” contained in the bill of lading.

It is contended by the defendant in error, that the bill of lading containing the words, “ with privilege of re-shipping,” means that the carrier will convey the goods safely, as far as it may be convenient-for him to go, and will then faithfully perform the duty of a forwarding merchant, in putting them on board a proper vessel for the port of destination.

We do not take this view of the contract. The contract is an entire one, for carrying the goods safely from Pittsburgh to Galena, and the consideration for the entire performance of the contract is fifty cents per keg. The privilege of reshipping, reserved in the bill of freight, enabled the defendant to carry the goods to the port of destination, either in his own boat or any other vessel, but in either event, did not discharge him from any liability not excepted in the contract. -Had the words, “ with privilege of re-shipping,” been omitted, the mere fact of re-shipping the goods on another boat, unless in case of necessity, would have been a deviation, and made him responsible. (Story on Bailment, sec. 562; Abbott on Shipping, chap. 3, sec. 1,8.) By the insertion of this clause, he is at liberty, to tranship, or re-ship on another boat, but his contract is not performed until the delivery of the goods at Galena. His compensation was for such delivery, and his liabilities should be commensurate thereto. The demurrer should have been sustained.

Judgment reversed, and cause remanded.