1 Johns. 215 | N.Y. Sup. Ct. | 1806
The declarations of the plaintiff’s attorney offered as evidence on the trial, prove nothing more than his opinion, at that time, of-the solvency of Briggs. This would not be legal and proper testimony of that fact; and had the attorney himself been alive, and produced as a witness, he would not have been permitted to give his own surmises, or belief upon the subject, but must have detailed facts that the jury might draw their inferences from them. The proposed testimony to establish the insolvency of Briggs was properly overruled. But the escape was before the day on which the writ was returnable ; and a recaption of Briggs by the sheriff before the return, might have been pleaded and would have shielded him in an action for the escape. If, therefore, the conduct or declarations of Mr. Remsen, who was the attorney of Potter, and had the contro til of the suit, had a tendency to throw the sheriff off his guard, or to induce him to forbear to make exertions to apprehend Briggs, such conduct or declarations ought to have had an influence in the cause, and should not have been excluded. In granting new trials, however, upon the subsequent discovery of testimony, or for the rejection of testimony offered, we ought to consider whether it would, or ought to vary the issue of the cause; if it. would not, the court' will not send the cause again to a jury. In the case now under consideration, the declarations of Remsen were made after the sheriff had used the most active exertions, and had spent large sums of moneyto retake Briggs, and after his agents had returned from. Massachusetts, and abandoned the idea of retaking him.-—
It is impossible to determine whether the circumstance, of the defendant having made a false return to the writ, operated on the minds of the jury to increase the damages. The judge was perfectly correct in stating to them that the return was legally false» But I do not think, that even if the sheriff knew it to be so, it ought to aggravate the damages. The true question is, what has the plaintiff lost in consequence of this escape ? The alleged false return by the sheriff, neither adds to, nor diminishes the loss, 'and, therefore, the solvency of Briggs, or his capacity to pay, must determine the quantum of damages sustained. If the circumstance of a false return be a substantive ground of damages, it would follow, that where the person escaping was perfectly solvent, and the sheriff makes a false return, the creditor might recover in damages more than the full amount of his debt. But the damages are excessive, for another and much more cogent reason. The jury founded their verdict upon Potter’s right of action against Briggs, not only for the balance of the account current, but also for the goods specified in the bill of lading and invoice. It appears to be an invoice of goods shipped by John Potter, for Kingston in Jamaica, &c. on account and risk of Messrs. Richard and George Kinkead there, and cartage, wharfage, cooperage and commissions are charged by him to the Messrs. Kinkead,. By the bill of lading the goods are to be delivered to the latter, or to their assigns, they paying freight. It is not denied, that the bill of lading and invoice may be liable to explanation, but as the case is destitute of any proof, except the documents themselves, to shew file relation between the consignor and the consignee, the plaintiff must be regarded as a mere agent purchasing on commissions ; and any
•In the case of Dawes v. Peck, 8 D. & E. 330, it is held that the right of action was to be governed by the consideration in whom the legal right to the property was vested.This principle was also adopted in Evans v. Martlett, 1 Lord Raym. 271, and in Snee v. Prescott, 1 Atkins, 248. The authorities commented upon in G East, 23, are decisive to show, that consignors in the situation of Potter in this case, cannot bring the action against the carrier. Potter was not answerable for the act of the captain, nor was he liable to the latter for the price of transportation, neither could he receive any injury from the non-delivery of the gqods, except so far as it might prejudice his right to stop in transitu. The consignees were liable to him for the price of the goods, whether they arrived or not, and for aught that appears by the case, he may already have received ofMessrs. Kinkead the invoice amount. Nothing has been disclosed to show, that he has received any damage, in consequence of being deprived of the power of stopping in transitu, or that any necessity existed for the exercise of that right. Even if his equitable lien, or right of stopping in transitu, were destroyed by the act of the master; ■yet Every much question whether the remedy therefor would be upon the contract; as I am inclined to think redress for that injury, must be sought in a special action on the case, or in an action of trover. Inasmuch, then, as Potter could not have recovered the amount of the bill of lading and invoice in the original action against Briggs, damages ought not to have been allowed him, in this action, on that account. I am of opinion therefore, that a new trial must be awarded with costs to abide the event of the suit.
The principal question arising out of this case is, whether Potter, the plaintiff in this action, could have maintained an action against Briggs on the bill of lading signed by the latter ? To say that he_ could not, ap
With respect to my having misdirected the jury, in telling them, that if the sheriff had been, in their opinion, guilty of fraud in making the return he did on the writ, it was matter of aggravation, I have only to observe that if the idea communicated to, and received by the jury was, that they might give what is commonly called smart-money, beyond the actual damages of the plaintiff, it was undoubtedly in» correct, Rut I am satisfied that no such idea was commit
My opinion, therefore, is, that a new trial ought not to be grani-d.
The contract to deliver the goods having been made with Potter., must confer on him a right of action for their non-delivery. It would be without example to de-< ny a party, to whom, an express promise is made, whether as trustee, or in his own right, a remedy for its violation,— This would produce the singular case of a party’s having e right to break an engagement, without responsibility to him with whom it is made, merely because, it is possible some other person may have a remedy against him; or, what would be more strange, it would make the very act which consummates the bargain between the shipper and master, that is. the delivery, destroy the remedy of the former on the contract. To whom the goods belong is of no importance, if it be once conceded, which cannot be controverted, that the right of property may be in one, while another, by express agreement, may have a remedy for some negligence or misconduct in relation to it. Whatever, therefore, may have been the right of the consignees in this instance, Briggs cannot contest that of the plaintiff, founded, as it is, on his own written agreement. Nor can any one be injured, by a right of action, for the same wrong, subsisting in different persons at the same time, (which, however inconvenient, must sometimes happen) as a recovery by one, will always bar the other’s claim. But a right to sue the master is not only
Another point relates to the damages, which are said to be excessive.. On the proofs.before the jury, I should not have agreed to so large a verdict. But they, were the proper tudges of Briggs’ circumstances, and if they thought him
Kent, C. J. and Spencer, J. concurred in the opinion delivered by Mr. Justice Tompkins.
New trial granted.
3 Burr. 2680.
1 T. R. 659.
8 T. R. 330.
See the case of D. & G. Ludlow v. Bowne & Eddy, ante, p. 1.