| Ark. | Nov 15, 1885
Turner sued the owners of a steamboat for the value of a box of dry goods, which they had undertaken to carry, but had never delivered, as it was alleged. He recovered judgment before the justice of the peace, where his action was begun, but, an appeal having been taken, was defeated in the circuit court.
The bill of lading shows a contract of affreightment for the transportation of five boxes of boots and shoes, one package and one box of dry goods, from Fort Smith to Childer’s Station, in the Cherokee Nation, to be delivered to Turner on the levee. As Childer’s Station is four miles distant from the river, and as goods destined for that point must be hauled in wagons from the river, counsel agree that the obligation upon the carrier was to deliver at the nearest landing, which was Bray’s, upon the river bank. In ascending the river to Webber’s Falls the boat put off •at Bray’s the rest of Turner’s freight, but carried on the box, which gave rise to this controversy. However, on its return trip next day, the box was carried ashore and deposited by the side of Turner’s other goods, which had not yet been removed. Turner was not notified, on either occasion, by any officer or agent of the boat, of the arrival of the goods, but received information from a teamster, on the Sunday that the boat passed up, that his goods were at the landing. Next day the same teamster saw the missing box on the landing with the rest of Turner’s freight; in fact it was pointed out to him by Bray. There was no warehouse at Bray’s, nor did the boat have any agent there. The testimony conduces to prove that there are no warehouses, wharf-boats or facilities for storing freight on the upper Arkansas, but that the custom is to blow the whistle to warn the neighboring settlers of the boat’s approach and to discharge the freight for a particular landing on the bank of the river, without notice to the consignee. Bray lived near the landing and sometimes sheltered goods left there by the different boats that navigated the river, when the weather was threatening; and was sometimes entrusted with the collection of special bills. He was usually requested to look after the freight and notify owners; but on this occasion was absent from home. This box of goods had never actually come to the hands of the plaintiff, and the main question was whether a delivery had been made according to the tenor and effect of the contract.
Turner must have known the precise character of Bray’s Landing, the custom of the boats in delivering freight,, and the want of facilities for the proper care and custody of it, after it was left on the bank. He was a merchant trading in the vicinity, and this was his shipping and receiving point. If, therefore, he was unwilling to be-bound by the delivery in accordance with the custom of the landing, he should have attended in person to receive his freight, or have designated an agent for that purpose.
In the case of The Mill Boy, 13 Federal Reporter, 181, Caldwell, J., in discussing the question, when is the carrier discharged from liability, when the contract is to carry to a neighborhood or way-landing where there is no wharf and no warehouse, and where the consignee does not reside and is not to be found, uses this language:
“ Such landings are not uncommon on the rivers of the southwest. They are established, or rather named, by the settlers living in the vicinity for their own convenience, and to avoid the labor, expense and delay of traveling to some established wharf or landing, where the usual facilities for storing goods may be found. It is a well-known fact that on the Arkansas and other rivers .in the southwest, the distance between the towns or established ports where there are warehouses or wharfboats is often very great. The necessities and conveniences of the settlers imperatively require that their goods should be delivered on the bank of the river, as near their homes and plantations as practicable, regardless of wharves and warehouses. The practical sense and generous spirit of good nieghborship which characterized these settlers very soon devised means for accomplishing the desired ends.
“ It was perceived at once that the rules governing the rights and duties of carriers by water, where the contract is to carry to some established port having a wharf or warehouse, and where the consignee resided or might be found, or where he could be speedily notified by telegraph or otherwise, could have no application to these country or way-landings. It was seen that a boat could not be required to lay at each one of these landings until the consignees appeared to receive their goods, or until notice of their arrival could be sent to them. To impose such an obligation on a boat would protract her voyage unreasonably and indefinitely, and no boat would receive goods consigned to a way-landing, if such an obligation had to be incurred. Accordingly, some spot deemed most favorable for a boat-landing would be fixed by the settlers and given a name. Some settler living at or near the landing, for the accommodation of his neighbors, would take it upon himself to notify them, by some of those casual methods usual among people in the country, when goods were put off at the landing for them, and would assume such care and oversight over the goods in the meantime as good neighborship and the necessities of the case seemed to require. And the usage and custom has been uniform that, when the boat put off goods at such a landing in good order and condition, and the person living at or near the landing was notified of the fact, and requested to look after them and notify the consignee, the liability of the boat was at an end. And the person in whose charge, in a very general sense, the goods may be said to be left at these landings, and who is expected to notify the consignee, is, as between the carrier and consignee, to be regarded as the agent or bailee of tbe latter, and not of the former, although no such relation may exist in fact between him and the consignee, or certainly none other than that of a bailee without award.
“ The usage and custom relating to the delivery of goods at these landings is shown to have prevailed, and to have been generally known and uniformly acted upon, ever since boats have navigated the Arkansas river, now more than half a century. It is a reasonable usage, and contracts of affreightment will be presumed to have been made with reference to it. Persons consigning goods to such landings must, therefore, be held to know their character, and the usage and custom relating to the delivery of freight thereat.”
The only remaining question in the case relates to the exclusion of certain evidence. One theory upon which the plaintiff claimed to recover was that Bray was the agent of the defendants, and that it was by his inattention that the goods were lost. In support of this theory the plaintiff offered, but was not permitted, to put in evidence a letter addressed by Bray to Turner, before the loss happened, proposing to take charge of his freight in the future for a reasonable compensation. This letter was accompanied by a freight bill, signed by Bray as agent, for goods which had arrived on another boat running in the same trade.
The evidence was properly rejected. An agency cannot be proved by the declarations of the agent in pais, and in the absence of the party to be affected by them. 8 Wharton on Evidence, sec. 1188. Morever, full proof that Bray was agent for the last-mentioned boat would have no tendency to prove that he was the agent of the defendant’s boat. The two boats had no apparent connection, and did not, so far as appears, belong to the same owners. In fact, we may fairly infer, from all the evidence, that they were rival and competing packets. Bray testified that he was never the agent of any boat in the river. And there was no evidence to the contrary. Hence the court properly refused a request to submit to the jury the question of agency or no agency.
Affirmed.