Palmer v. Smith

9 Rob. 396 | La. | 1845

Morphy J.

This suit is brought to recover of the defendants, as consignees of the ship Huntsville, the value of three boxes of goods, shipped in New York on board the said ship, under the following circumstances: The three boxes of merchandise, had been sold to Henry H. Milly by one William F. Yon Wagenan of that city, and marked “ Henry H. Milly, Alexandria, Louisiana,” and the bill of lading taken for them was assigned by the shipper to James Armor of this city, with instructions not to deliver them until Milly had given a note, satisfactorily endorsed, for a balance of the price yet due to the seller. Upon the arrival of the ship in New Orleans, about the middle of September, 1839, the goods were landed, and delivered to Kirkman, Abernathy & Hanna, the commission merchants of Milly, by whom they were immediately forwarded to their appointed place of destination, Alexandria. Milly having absconded shortly after, without paying the balance due the shipper for these goods, the amount was claimed and recovered of the owners of the Huntsville in New York by Yon Wagenan, the shipper, on the ground of the non-delivery of the boxes of goods in New Orleans, according to the bill of lading. The present action, which was instituted on the 18th of June, 1841, has for its object to render the defendants liable for their alleged negligence in delivering the goods to Milly’s agents, without the production of the bill of lading. The defendants pleaded the general issue, and the prescription of one year. They had a judgment below in their favor, from which the plaintiffs have appealed.

The plea of prescription cannot be sustained. This is clearly an action against the defendants, as agents. They are sought to be made liable, on an alleged failure to comply with their obligations as consignees of the Huntsville. Their liability, therefore, if any exists, arises ex contractu and not ex delicto. Civil Code, art. 2972. 3 La. 569.

On the merits, it is not shown that the defendants had any knowledge of the assignment of the bill of lading to James Armor. The boxes containing the goods were directed to Henry H. Milly, the purchaser, at Alexandria; they were put with other packages bearing the same address, and were taken together from the levée to the store of Kirkman, Abernathy & Hanna, the known agents of Milly in New Orleans, and were by them forwarded to Alexandria, on the next day. It is contended that, as according to the tenor of the bill of lading, the goods were to be delivered to the order of the shipper, Yon Wagenan, the consignees of the Huntsville acted illegally in delivering them without the production of the bill of lading. Nothing proves that this fact was made known to the defendants, either by the captain, or by James Armor, the consignee of the goods, at the time they were delivered. After the ship was discharged, James Armor called upon the defendants for the boxes, and exhibited the bill of lading assigned to him. Immediate application was made to Kirkman, Abernathy & Hanna, but the goods had been forwarded to Milly several days before. It further appears that it was even the intention of the shipper that these goods should be delivered to Kirkman, Abernathy & Hanna, and that according to his instructions to James Armor, they were to'hold the goods subject to the latter’s order, until a note, satisfacfoVily endorsed, was given by the purchaser. Had James Armor; upon the arrival of the ship, communicated to Milly’s agents' th'e condition under which the goods were to remain in their hands, they would not surely have forwarded them, until Milly had’ made' a satisfactory arrangement. Having no such notice, and the goods being apparently the property of Milly, his agents in New Orleans availed themselves of the earliest opportunity to send them to their principal. Several witnesses have testified that it is customary in the forwarding business, when the person to whom goods are to go is known, to forward them by the first safe conveyance, without waiting for the bill of lading, which is sometimes delayed, and sometimes never arrives. The accident, or error, by which these boxes were lost, was in a great measure created by the directions put upon them by the shipper, and the tardiness of the notice given to the defendants, or to Kirkman, Abernathy & Hanna, of the disposition that was to be made of them. We think, upon the whole, with the inferior judge, that, under the circumstances of this case, the defendants should not be made liable for the value of the goods.

Judgment affirmed.