Stimpson v. Gilchrist, 1 Me. 202

Stimpson v. Gilchrist

1 Me. 202 | Me. | 1821

Preble J.

The objection to the sufficiency of the declaration, that it is not averred that the plaintiff was owner of the manganese, cannot in this form of action avail the defendant. Suppose the property to have been that of Stanwood for instance, or of any other person, Stimpson might well make a contract with Gilchrist to transport it to Boston or elsewhere, and it would not be competent for Gilchrist, when called upon for not fulfilling his contract, to set up by way of defence, the fact merely that Stimpson wras not the owner. Anonymous, cited in Laclouch v. Towle, 3 Esp. 115. Moore v. Wilson, 1 D. & E. 659. Joseph v. Knox, 3 Campb. 321. If there were no special agreement, no express contract, entered into by Gilchrist with Stimpson, but the question with whom the carrier contracted, whether with *206the consignor or consignee, were left to be determined by the general principles of law applicable to such cases; the fact to whom the property belonged, had, as a matter of evidence, a most material bearing upon the issue. Dawes v. Peck cited in argument. Dutton v. Solomonson, 3 B. & P. 581. Brown v. Hodgson, 2 Campb. 36. Lickbarrow v. Mason, 6 East 23. note. Potter v. Lansing, 1 Johns. 215. Christy v. Row, 1 Taunt. 300. Sargent v. Morris, 3 Barn. & Ald. 277. But that question, though it may have arisen in the progress of the cause, is not how before us. On a motion in arrest of judgment no question can be considered excepting such as appears on the face of the record itself. In the case at bar the declaration expressly alleges the contract to have been with the consignor. There is no mention of a bill of lading, as supposed in the defendant’s motion. We have no knowledge, nor can we have any, of the nature of the evidence adduced on the trial. If Gilchrist intended to rely on the objection that his contract, if express, was with Stanwood, and not with the plaintiff; or, in case there was no express promise, that his implied contract was by intendment of law with the consignee and not with the consignor ; he should have objected at the trial that the evidence did not sup-? port the declaration. No such objection appears to have been made. Now after verdict every promise is taken to be an express one; 1 Cranch 341. per Marshall C. J. and no assumpsit can be presumed to have been proved on the trial but that, which is alleged in the declaration. Spiers v. Parker, 1 D. & E. 141. And every fact necessary to be proved at the trial in order to support the declaration must be taken to have been proved, per Kenyon C. J. Mackmurdo v. Smith, 7 D. & E. 522. We cannot therefore now presume that the engagement on the part of the defendant was merely an implied one arising out of the nature of the transaction, or that there was any other contract in relation to the subject matter than the one which the declaration discloses.

On looking into the declaration we find set out with sufficient certainty a contract, entered into by the defendant with the plaintiff to transport to Boston certain manganese, laden by the plaintiff on board the Fanny, of which the defendant was mas? ter, and there to deliver tljc same to one Stanwood on payment *207of an agreed freight. It is not objected that the consideration set out is not a valuable and sufficient one. The plaintiff then alleges in terms as broad as the contract set out that the defendant did neglect to transport and deliver the manganese, in ‘ violation of his contract. The defendant was entitled to a reasonable time, in which to perform his contract. Lorillard v. Palmer, 15 Johns. 14. But although this is not noticed in the declaration, jet it must be presumed it appeared at the trial that a reasonable time had elapsed before the suit was brought, and that whatever else was necessary to be done on the part of the plaintiff, had been done; otherwise the plaintiff could not have obtained a verdict. All such defects are cured by the verdict. 1 Saund. 288. note 1. by Williams. It appears to us therefore that there is a sufficient cause of action set forth in the declaration. The motion in arrest of judgment is accord-, ingly overruled.

Judgment on the verdict.

Note. The Chief Justice, having formerly been of counsel in the cause, gave no opinion.