Merriam v. Hartford & New-Haven Rail-road

20 Conn. 354 | Conn. | 1850

Storrs, J.

The plaintiff claimed to have proved, on the trial, that the property, to recover the value of which this action was brought, was delivered by him, to be transported by the defendants, as common carriers, from the city of New-York to Meriden, on a dock in said city, which was the private dock of the defendants, and in their exclusive use, for the purpose of receiving property to be transported by them ; and that it was delivered there, in the usual and accustomed manner in which the defendants received property for transportation ; and the court charged the jury, that such delivery at said dock, was a good delivery to the defendants, to render them liable for the loss of the property, although neither they nor their agents were otherwise notified of such delivery. The defendants insist, that they were not chargeable for it, unless they had express or actual notice of such delivery ; and that the jury should have been so instructed.

A contract with a common carrier for the transportation of property, being one of bailment, it is necessary, in order to charge him for its loss, that it be delivered to and accepted by him for that purpose. But such acceptance may be either actual or constructive. The genera! rule is, that it must be delivered into the hands of the carrier himself, or of his servant, or some person authorized by him to receive it; and if it is merely deposited in the yard of an inn, or upon a wharf to which the carrier resorts, or is placed in the carrier’s cart, vessel, or carriage, without the knowledge and acceptance of the carrier, his servants or agents, there would be no bailment or delivery of the property, and he, consequently, could not be made responsible for its loss. Addison on Cont. 809. But this rule is subject to any conventional arrangement between the parties in regard to the mode of delivery, and prevails only where there is no such arrangement. It is competent for them to make such stipulations on the subject as they see fit; and when made, they, and not the general law, are to govern. If therefore, they agree that the property may be deposited for transportation at any particular place, and without any express notice to the carrier, such deposit merely would be a sufficient delivery. So if, in this case, the defendants had not agreed to dispense with express notice of the delivery of the property on their dock, actual notice thereof to them would have been necessary; but if there was such an agreement, the deposit of it there, merely, would amount to constructive notice to the defendants, and constitute an acceptance of it by them. And we have no doubt, that the proof by the plaintiff of a constant and habitual practice and usage of the defendants to receive property at their dock for transportation, in the manner in which it was deposited by the plaintiff, and without any special notice of such deposit, was competent, and in this case, sufficient to show a public offer, by the defendants, to receive property for that purpose, in that mode ; and that the delivery of it there accordingly, by the plaintiff', in pursuance of such offer, should be deemed a compliance with it on his part; and so to constitute an agreement between the parties, by the terms of which the property, if so deposited, should be considered as delivered to the defendants, without any further notice. Such practice and usage was tantamount to an open declaration, a public advertisement, by the defendants, that such a delivery should, of itself, be deemed an acceptance of it by them, for the purpose of transportation ; and to permit them to set up against those who had been thereby induced to omit it, the formality of an express notice, which had thus been waived, would be sanctioning the greatest injustice, and the most palpable fraud.

The present case is precisely analogous to that of the deposit of a letter for transportation in the letter-box of a post-office, or foreign packet vessel, and to that of a deposit of articles for carriage in the public box provided for that purpose, in one of our express offices; where it would surely not be claimed, that such a delivery would not be complete, without actual notice thereof to the head of these establishments or their agents.

The only authorities cited by the defendants, to show that an express notice to them was necessary in this case, are Buckman v. Levi, 3 Campb. 414. and Packard v. Getman, 6 Cowen, 757. These cases are distinguishable from the present, in this respect, that there was not, in either of them, a claim of any particular habit or usage of the defendant, which should vary or modify the general principles of law in regard to the mode of delivering the property. They were, therefore, decided merely on those general principles, unaffected by any special agreement between the parties on that subject, inferable from such usage. But in several of the cases cited, it was held, that where the earlier had been in the habit of receiving property for transportation in a particular mode, a delivery to him in that mode, was sufficient.

The defendants except also to this part of the charge, on the ground, that, if their particular usage as to the reception of property could eontroul the general law of delivery, the court should have submitted to the jury the question of fact, whether such usage influenced the plaintiff' in the course which he took in regard to the delivery of the property, and did not instruct them, as matter of law, that the delivery, as claimed to be proved by the plaintiff, was sufficient. We think, that it would not be going too far to say, that when the plaintiff, in delivering the property, conformed to the usage of the defendants in receiving it, which was different from the usage which generally prevails in that business, he is presumed to have known of that usage of the defendants, and to have been influenced by it; and it does not appear, that there was any evidence to repel such presumption. But without deciding that point, it is a decisive answer to this objection, that it was not only not made on the trial, but the defendants placed this part of their defence on the sole ground of a want of notice to them of the delivery. To no other matter in this branch of the case was the attention of the court called. The judge therefore had a right to infer, that no question was intended to be made, as to whether the plaintiff was influenced in his conduct, by the usage of the defendants. His attention would naturally be drawn from that subject, by the course taken by the parties, in raising the question of notice, and no other. It was the duty of the defendants distinctly to direct the attention of the judge to the point which he now claims was overlooked, if he wished to have it noticed. In regard to his instruction to the jury, that the delivery, if made in the usual and accustomed manner in which the defendants received goods for transportation, was sufficient, we think that it was correct, as there was no evidence adduced by the defendants to qualify or affect the proof of the plaintiff on that subject. The charge, therefore, was unexceptionable,

2. We are of opinion that, by a just construction of the 141st section of the act “ for the regulation of civil actions,” (Stat. 86.) the wife of the plaintiff was a competent witness in his behalf. It was the express object of that section to remove the common law disqualification of persons as witnesses, in all civil suits, by reason of their having an interest in the event of the same. In legal contemplation, the husband and wife are one person : their interests are, therefore, identical. This is the ground of their exclusion, by the common law, as witnesses for each other. The reason given by Blackstone, why they are not to be admitted to be witnesses for each other, is, that it would contradict the maxim of law, “ nemo in propria causa testis esse debet:” (1 Comm. 443.) and Phillips says, “ they cannot be witnesses for each other, because their interests are absolutely the same.”

It is said, however, that the reason for this exclusion, is not founded wholly upon their identity of interest, but partly on a principle of public policy, which deems it necessary to guard the confidence of married life; and that the statute, by its terms, applies only to cases where the interest of the party was the sole ground of exclusion. This argument, however, entirely fails, because that reason applies only where the husband and wife are called to testify against* each other; and in such cases, we admit that it has very great weight.

But were it otherwise, we think that this would be too narrow a view of the statute and of the intention of the legislature in making it. Its language is substantially like that of the statute making all interested persons competent as witnesses in the action of book-debt; and its object, although broader, is the same. The latter statute has been in existence since the earliest settlement of the state. Under it the wife, in that action, has always been admitted as a witness for the husband ; and this construction of that law was sanctioned, by the case of Stanton v. Willson & al. 3 Day, 37. The law now in question should receive a similar construction.

3. The remaining question respects the admissibility of the deposition of Edwards. He testified, in that deposition, to the general good character of Crawford, a previous witness, for honesty, and in every other respect, which of course included his character for veracity. The general rule is, that a witness cannot be supported by evidence of his general character for truth, excepting after a general impeachment of it; but we have adopted an exception to it, where the witness is in the situation of a stranger; in which case, we allow him to be supported, by evidence of his genera! good character for veracity, without such impeachment. Rogers v. Moore, 10 Conn. R. 12. But evidence of his good character, in other respects, is not admissible for that purpose. Therefore, as Crawford was a stranger, that part of the deposition which related to his character for truth, was admissible ; but the remainder of it, which spoke of his character in other respects, was not. The objection in this case to the deposition, was a general one ; but a part of it being admissible, it would not have been proper for the court to exclude it. The objection should have been made, specifically, to that part of it which was inadmissible.

We do not, therefore, advise a new trial.

In this opinion the other Judges concurred.

New trial not to be granted.