Steamboat Virginia v. Kraft

25 Mo. 76 | Mo. | 1857

Scott, Judge,

delivered the opinion of the court.

In the case of White v. Vann, 6 Humph. 73, the court said it was “ proved by several enlightened merchants and well-informed owners of steamboats, that it is the long and well established custom and usage of trade, not only on the Tennessee river, but throughout the United States, for freighters of goods to advance to the forwarding agents the existing charges upon them, which the consignees and owners are liar-ble to refund; that this usage is indispensable to the successful prosecution of commercial operations, and of great and mutual advantage to all parties.” We have copied the above extract as showing the usage, because upon examination we have not been enabled to find much, if any thing, in relation to it. The advantages resulting from this usage are so obvious that -it must commend itself to every one; and we should regret to see it a stranger to our courts. But advantageous as this usage is shown to be, we do not know, nor can we conceive any thing that would more effectually render it odious than such an extension of it as would make it cover advances for claims or demands on the owner or consignees wholly foreign to and disconnected with any cost or charge for transportation. If this were tolerated, not only the forwarding agent, but every one who would collude with him, might obtain payment of demands, whose justice the owners or consignees refused to recognize. It would be the introduction of a novel mode for the collection of debts where payment had been denied on the ground of their invalidity, and a means of compelling the owner to submit to unjust ex-actions or to refuse him his goods.

As the debt paid by the plaintiff through her agent was in nowise incurred by, nor in any way connected with, the transportation of the merchandise, she could not by such voluntary payment, unsupported by any usage, make herself a creditor of the defendant. Nor can the officers of the plaintiff, by any custom or usage, protect her from the consequences of their neglect in not ascertaining whether their advances were the costs of transportation. Would they advance any amount, however enormous, and expect to save her from loss by a usage which did not require them to ascertain the validity of the charges ? A custom to encourage negligence at the expense of others would scarcely be tolerated by the law. Being familiar in the business of transporting merchandise, if the items of the charges were produced and examined, the agent could see at once whether they were usual and proper.

The principle that, where one of two innocent persons must suffer by the act of a third, he should bear the loss who has placed it in the power of the third person to do the injury, has no application here. The plaintiff is not an innocent party. Her agents were guilty of gross negligence in not informing themselves of the nature of the charges for which they made an advance. There is no pretence in the circumstances of the case to warrant the instruction to the effect that the defendants, by receiving the goods, acknowledged the justice of the charges, and were liable to pay them, unless the plaintiff, when she advanced them through her agent, knew that they were not the ordinary and usual charges incurred in the transportation and shipment of goods.

As the charge was illegal and unjust; as there was no evidence that the defendants were aware of its nature when they received the goods ; as they objected to it so soon as it was known; and as they could not contemplate that an improper charge would be made against them, there is no foundation for the presumption that they acquiesced in or acknowledged the justice of the plaintiff’s demand. The defendants, upon tendering the legal advances, would have been entitled to the possession of their, goods, and might by an action have compelled their delivery. As they have them lawfully without suit, there is no reason why they should be placed in a worse situation than if they had obtained them by suit. The other judges concurring, the judgment will be reversed, and the cause remanded.