24 La. Ann. 406 | La. | 1872
The plaintiffs allege that in May, 1862, they shipped oh
. The prayer of the petition is for judgment against the defendant for ■$19,875 and interest.
The defendant pleads the general denial, admits that lie was master ■of the steamboat Red Chief at the time said cotton was taken on board, but avers that it was exposed to imminent danger of loss and destruction by burning, which was then extensively carried on in that region by parties acting, or pretending to act, under the authority of the so-called Confederate government j that plaintiffs and others desired this respondent to receive their cotton on board said steamer, and to convey it to such place or places of safety as in his judgment might be found, agreeing to give him one-fourth of said cotton that might be ■saved; that he did, to the knowledge, request and satisfaction of said plaintiffs, carry the same to Cow Island, in Bayou Flagon, a secluded place, and there store the same according to his best ability; that he ■exercised all the care and diligence of which he was capable in preserving the same ; that it was taken by overpowering force, and either run off or destroyed.
The respondent specially denied that he ever used or converted a single pound of said cotton, and he avers that the charge is maliciously made against him by the plaintiffs.
The court rejected the plaintiffs’ demand, and they have appealed.
We think the evidence fully sustains the defense.
The plaintiffs were anxious to save their cotton from being burned ; they gave it to the defendant to be conveyed to such place of safety as he might find, and there to be kept till the war terminated, and then to be brought to New Orleans, he receiving one-fourth thereof for his .services.
Owing to the condition of the country in 1864, we think the defendant could not have prevented the parties who got the cotton from ■taking it.
The place where it was stored was at the time probably as safe as
The defendant, who was examined as a witness, states: “ I was-captain of the Eed Chief in May, 1862; was in the Atchafalaya with the Eed Chief at the time when Bennet B. Simmes came to me and proposed to give me a load of cotton to take to some secure place wherever I chose, and to keep it until the close of the war, and then (if saved) to be delivered to merchants as per bill of lading. I received from various parties five hundred and ninety-four bales upon the same terms. I was to receive one-fourth of the cotton, if I saved it and succeeded in getting to New Orleans with it, there to be delivered to different consignees. I carried the cotton into Catahoula parish, on an island in Catahoula Lake, named Cow Island, on Bayou Plagon, which empties into the lake. This was as secure a place as I knew of in the-State, and the cotton would have been kept safe had it not been stolen.
‘‘1 employed a man to look after it as long as the state of the country would permit. His name was Wilson, and he wrote to me occasionally concerning it. I went once to see it with the steamboat, with the intention oí removing it, but after getting there and seeing the condition of things, I changed my notion; because Cow Island was a secure place, and the bagging being loose, the cotton might have been destroyed in removal. At the time I took this cotton bn board, cotton was -being-burned in the neighborhood. I had three hundred bales of cotton ob Little Eiver about twenty miles below Cow Island. This cotton was. my own property, and was burned by order of General Walker of the Confederate forces. I had other lots above, on Little Eiver, all being-my individual property ; one of these lots was burned and the other two were stolen.
“ I carried a great deal of cotton up Little Eiver for other parties, none of which was saved, so far as I know.
“Very little cotton on Little Eiver was burned; most of it was stolen about the time of General Banks’s raid.
“The cotton in controversy was stolen about the time of this raid, as no one could get,into the country, and if I had had a thousand men they could not have protected this cotton ; there was a great deal of burning and stealing at this time. It was unsafe to travel through the country jayhawkers and thieves abounded. I have never sold nor taken away, nor received a pound of this Cow Island cotton. I exercised all the-care in my power for its protection. * * * * I was asked to take the cotton on board the Eed Chief to save it from destruction. A portion of the load was to have been burned the next day — a. portion having been hauled out for that purpose.”
Judge Merrick was also examined as a .witness. He states : “ That
. After fully examining”the evidence, we have concluded that the facte stated by these two witnesses disclose the true state of the case. The country was in a state of war, and the port of New Orleans was occupied by the national forces at the time the contract was made between the plaintiffs and the defendant in relation to the cotton, which was in rebel lines. The services of the defendant and his boat were employed in the desperate effort to avoid the loss and to save, if possible, the cotton from the casualties of the war — the defendant, by the contract, being made a partner to the extent of one-fourth of what he might save.
From the evidence we are satisfied he acted in good faith, and did for the plaintiffs the best he could under the circumstances, it being no part of his contract to insure against the casualties of the war. As all the cotton in that region of country was destroyed or stolen ; as lawlessness and violence prevailed, we believe- it was -impossible for the defendant to save the cotton in. which he was interested as a partner to the' extent of one-fourth; and therefore conclude it will' be against law and good conscience to condemn him to pay what is demanded by the plaintiffs.
The principles of the law of common carriers is not applicable to 'a. case like this.
Judgment affirmed.