18 Barb. 500 | N.Y. Sup. Ct. | 1854
1. The plaintiff’s ability to maintain this action involves the question whether the right of action is assignable. The question is not affected by the provisions of the code ; for as I shall attempt to show, presently, such choses and rights as were assignable before it took effect, are assignable still, and no others. Nor does it depend upon the question whether the right to maintain the action would have passed to the assignor’s executors, in the event of his death, because the statute (2 R. S. 365, §§ 1 and 2) gives the personal representatives rights of action which, at the common law, died with the person. Mr. Justice Oowen, in The People v. Tioga Com. Pleas, (19 Wend. 76,) says: “I have not been able to find any casein England which, in respect to personal estate, has given the assignees a greater right than would go to the executor; none which vests in them a right of action for a personal tort or indeed any other mere tort, while there are several cases, in Pennsylvania, which deny that such rights will pass.” In Prosser v. Edmonds, (1 Younge & Coll. 48,) I find Lord Abinger using this language: “ In the course of the argument it was urged that an equitable as well as a legal interest may be the subject of a conveyance, and that the assignee of a chose in action may file a bill in equity to recover it, although he cannot proceed at law, for that purpose. But when an equitable interest is assigned; it appears to me that in order to give the assignee a locus standi in a court of equity, the party assigning that right must have some substantial possession, some capability of personal enjoyment, and not a mere legal right to overset a legal instrument; For instance, that a mortgagor who conveys his estate has in himself an equitable right to compel a reconveyance when the mortgage is paid, is true. But there is a right reserved to him by the original security : it is a right coupled with possession, and receipt of rent, and he is protected so long as the interest
Let us now see what that statute has done to change the common law in this respect. Section 111 provides that “ every ‘action must be prosecuted in the name of the real party in interest, except as otherwise provided in section 113; but this section shall not be deemed to authorize the assignment of a thing in action not arising out of a contract.” It will be recollected that the rights of assignees of choses in action which were the subject of assignment and transfer were originally recognized and protected in the courts of equity only. In more recent times, when they came to be recognized and enforced in the courts of common law, it was only by actions in the name of the original owner or assignor. When the distinction between proceedings at law and in equity was attempted to be taken away, and the distinction of actions was abolished, it became necessary for the purposes of harmony and uniformity to declare that actions should, except in some special and particular cases, be prosecuted in the name of the real parties in interest, as they always had been in the equity courts. Section 111 had no other object, that I can perceive, but to remove what would otherwise have been an incongruity, and to provide one uniform mode of
What then was it that the plaintiff purchased from Andrew Gr. Spencer by the deed of assignment under which he claims ? It was not the coin and gold dust which he says was delivered to William H. Backus, the defendants’ agent, to be carried from Panama to the city of New-York, because that was either lost or stolen at the island of Jamaica, long before the deed of assignment was executed. It was not a thing of which Spencer had delivered or could deliver the possession; nor was it of any right which third persons could see and recognize. It was a mere right to recover against the defendants for a breach of duty, and a right to enter into the courts and litigate and enforce, if he could, a naked right or claim which Spencer was unwilling to, or could not, without , the aid of his own testimony, litigate successfully and enforce himself. It was the right to recover for a tort for although this class of cases seem to lie at the point of separation between actions arising ex delicto .and those arising ex contractu, and a plaintiff may waive the tort and proceed upon the contract, it is in vain to say the action arises out of contract, in the usual sense of the expression. ■“ A. common carrier exercises a public employment, and consequently has public duties to perform. He cannot, like a tradesman or mechanic, receive or reject a customer at pleasure, or charge any price he chooses to demand. If he refuses to receive a passenger, or carry goods, according to the course of his particular employment, without a sufficient excuse, he will be liable to an action; and he can only demand a reasonable compensation for his services and the hazard he incurs. The extent of his liability does not depend upon the terms of the contract. It is declared by law. It is not the form of the contract, but the policy of the law, which determines
The complaint in this action is not framed upon the contract. It charges that the defendants are common carriers ; that Andrew Spencer, on the 16th of August, 1852, delivered the coin and gold dust at Panama to the defendants, as such common carriers, to be conveyed to the city of Hew-York, and then alleges the breach of duty as common carriers and the omission to convey and deliver the property, and sets out the assignment of the claim by Spencer to the plaintiff, on the first of November thereafter
2. I have looked into the printed notices and advertisements read in evidence upon the trial, without being able to find any thing which could induce dealers and those desiring to forward property, to believe -that Backus, the express agent, had any authority to receive the coin and gold dust, for transportation, at points intermediate the places of departure and destination, and during the voyage. On the contrary, I find it stated up to what period of time of the day of the sailing of the packet, packages and property will be received for. carriage. In the advertisement taken from the San Francisco Daily Whig, the time is given, up to which treasure will be received. It was, I think, a fair and legitimate inquiry for the jury, what authority Backus, the agent, had to bind his principals by the receipt of treasure
The court charged the jury that Backus, as the messenger of the defendants, was authorized to receive gold and gold dust on their account, to be carried by them on their responsibility. This was excepted to by the counsel for the defendants.' fits effect was to preclude all inquiry by the jury upon what I deem to be' the principal question in the cause. All that the charge left them to determine was, whether the treasure was delivered to Backus as a private person, to be carried by him on his own account, or as the agent and messenger of the defendants. This instruction was entirely too narrow. It concluded the defendants upon one of the main issues in litigation. I see nothing in the law which distinguishes- between the agents of common carriers and the agents of others. If the act upon which \ the defendants are to be charged is' the act of an agent, his- J authority must be made out, and is a question of fact for the :/ WJ-
There must be a new trial, with costs to abide the event.-
The complaint in this action is against the defendants as alleged common carriers, for a breach of duty. There is no allegation of the violation of any contract, nor is any contract set forth. Possibly one might be implied, from the averment that the defendants were to convey the goods for a certain reasonable reward; but the plaintiff’s claim is founded upon a responsibility independent of, and beyond, the contract, (Forward v. Pittard, 1 D. & E. 27.) It was said by Judge. Bronson in Hollister v. Nowlen, (19 Wend. 239,) that “the extent of the liability of a common carrier does not depend upon the terms of his contract; it is declared by law.” “It is not the form of the contract, but the policy of the law, which determines the extent, of the carrier’s liability.” In Ansell v. Waterhouse, (2 Chitty's R. 1,) Holroyd, J. said, “ this action” (which was on the case, against the proprietor of a stage coach) “ is founded on what is quite collateral to the contract, if any, and the terms of the contract, unless changing the duty of a common carrier, are in this case quite immaterial. The declaration states an obligation imposed upon him by law.” An action can undoubtedly be founded upon the contract, but then the plaintiff must prove his contract as stated in his complaint, and his recovery must be based upon that, should he recover at all, but it is not so in declaring for a tort; so that, as was said by Judge Cowen in Weed v. The Saratoga and Schenectady Railroad Company, (19 Wend. 541,) when the case is at all doubtful,’ or embarrassed even, as to subject matter, the action should, if the plaintiff would secure himself from injury by variance, be for the tort. The action, in the case under consideration, is instituted by an assignee. It is in form and substance for “ a thing not arising out of contract.” It is for a breach of duty. One of the sources of such duty may have been a contract, but another, and the principal source is the obligation imposed by law, by reason of the nature of the employment. The cause of action as instituted could not be assigned at common law so as to confer upon the assignee a right to maintain a suit for it in his own name. Neither can it under the code. (§ 111.) It is true the assignment purports to be of the goods as well as of the cause
"The defect is not, as was supposed by the plaintiff’s counsel, merely of a party plaintiff, such as is mentioned in the 4th subdivision of the 144th section of the code. The provision has reference to the number—where there are too many or not all who should be joined. The difficulty here is that the complaint does not state facts sufficient to constitute a cause of action. No action can be sustained by the plaintiff, under the facts which it avers. The objection.being substantially that the complaint does not state facts sufficient to constitute a cause of action, was not waived by the defendants by their omission to demur or to urge it in their answer. (Code, § 148.) The provision of the code to which I allude, has reference to a cause of action in the plaintiff. It is not enough to raise the presumption of a waiver that the complaint sets forth facts sufficient to constitute a cause of action in favor of some other person. I am satisfied that the plaintiff cannot sustain this action.
But there are other, and it seems to me insuperable, difficulties in the plaintiff’s way. It does not appear that the messenger who received the goods was the agent of the defendants, to enter into any engagement for the transportation of property, or to take charge of any, except such as was confided to him by them, or some one duly authorized to do so in their behalf. Their advertisement, which was given in evidence by the plaintiff, simply
But I am well satisfied that if Backus, the messenger, had the requisite authority to receive the property on freight in behalf of the defendants, he did not so receive it, but that he took it on his own responsibility. He testified that Spencer asked him if he had a trunk in which Spencer could put the dust and coin, to go on shore; that Backus told Spencer that he could put the goods in his (Backus’) trunk; that Spencer put the goods into Backus’ private trunk, in which there was nothing but his own private apparel; that Spencer asked Backus to let it remain in that trunk, going across the isthmus ; that Backus made no agreement to receive the property for the defendants; was not asked to receive it for them, and did not receive it for them ; that Spencer, after the goods were lost, said he had no claim on the defendants, and that when Backus was subsequently informed that Spencer intended to sue the defendants, he told Spencer that if the defendants had to pay him, he, Backus, would pay them, for it was money he had taken for his accommodation, and not on their account. Spencer, on his primary direct examination and cross-examination, in giving an account of the transaction, speaks of his negotiation with Backus as a personal : affair, and does not allege that it was in his capacity of agent for the defendants. On his cross-examination he says that he spoke to Backus as an agent of the defendants, and not individually. This may have reference to intentions, and not as to what was said. It would have been more satisfactory if the witness had stated the particulars, or at any rate so far as to have shown that Backus must have understood that the goods were confided to him as the agent of the defendants.Spencer testifies under circumstances detracting somewhat from his credibility. He had transferred a disputed claim—one probably known by the assignee to be contested, and yet, according to Spencer’s testimony, he received it in full satisfaction of a
, The verdict of the jury, finding in. effect that the goods were entrusted to Backus in his capacity of agent for the defendants, is ..decidedly against the preponderance of the evidence.
In. the view which.I take of this case it is unnecessary to. decide whether the defendants are common carriers.; and .that question has.beco.me,so important, that it shpuld.be settled only, in-, a case where it .solely controls the controversy.
There ..should, be. a new. trial; costs to abide the event of the suit.
Rockwell, J., concurred.
New trial granted.
Brown, S. B. Strong and Rockwell, Justices.)