Summary
In Price v. Powell (3 N.Y. 322), an action against a carrier, it was held that the conversation between the master of the vessel and the consignee at the time the latter opened the boxes, related to the acts and duties of the master concerning the subject in hand, and before he had fulfilled his obligation by delivering the property to the consignee, and so were properly admitted.
Summary of this case from Fein v. WeirOpinion
April Term, 1850
M.T. Reynolds, for appellants.
J.M. Van Cott, for respondents.
This case has been made up in a loose and disjointed manner, and with little regard to the rules which ought to govern in framing bills of exceptions. Instead of giving, as it should, a plain and concise statement of the facts out of which the questions of law arise, the bill is made up of portions of the evidence, and these are set forth in detached and scattered parcels; making it necessary to hunt through the whole case, and draw inferences, to get at the facts relating to a single one of the many questions made by the bill; and rendering it difficult, if not impossible, to determine what are the legal rights of the parties. If it be proper to review such a case, every doubt about facts should be turned against the party making the bill.
Although the consignee is presumptive owner of the property shipped, it is a presumption which may be, and which was, I think, sufficiently rebutted in this case. As I understand the evidence, the property was not consigned to Hotchkiss as owner, but as the agent of the plaintiffs, who were the owners of the property at the time of the alledged injury by the carriers. And besides, it appears that there was other evidence, which is not set forth in the case, going to prove that the plaintiffs, and not the consignee, were the owners of the property. The plaintiffs must be regarded as owners; and this disposes of two of the exceptions. As the plaintiffs were owners, the suit was properly brought in their names. And as Hotchkiss was but an agent, he had no interest in the event of the suit, and was a competent witness for the plaintiffs.
As the master signed the usual bills of lading stating that the property was "shipped in good order and well conditioned," the burden lay upon the defendants to show that the marble was broken before it came to their hands. The evidence bearing upon that point made it a proper question for the jury; and the case does not show that the question was not submitted to their consideration. The case does not profess to give the whole of the judge's charge.
The conversation between Myers the master, and Hotchkiss the consignee, at the time the latter opened the boxes and found the marble broken, related to the acts and duty of the master concerning the subject in hand; and the conversation occurred before the master had fulfilled his obligation by delivering the property to the consignee. No evidence concerning the usage at Wilmington had been given at the time the question about proving this conversation was made; and clearly, landing the property on the wharf was not a good delivery, without, at the least, giving notice to the consignee. ( Ostrander v. Brown, 15 John. 39; Gibson v. Culver, 17 Wend. 305; Fisk v. Newton, 1 Denio 45.)
There is room for doubt whether the evidence which the defendants offered concerning the custom at Wilmington should not have been received. But it is not necessary to consider that question; for as I understand the case, the defendants were afterwards allowed to give evidence of the custom without objection. And it turned out, as is often the case, that the defendants had offered to prove more than they could establish. The proof does not show that, by the custom, delivery on the wharf, without any thing more, is a good delivery to the consignee. On the contrary, the proof shows, that according to the custom, notice must be given to the consignee. The witness says it is not customary for the captain to give the notice; but the consignee of the vessel, or his clerk, gives it. The consignee of the vessel, as well as the captain, was the agent of the defendants, and it matters not which agent was bound to give the notice. The defendants had not discharged their obligation as carriers, until they had, either in person or by some agent, given the notice.
On the case proved, the judge was clearly right in charging the jury, that delivery at the wharf was not sufficient, without notice to the consignee.
Davis was the consignee of the vessel, and he actually gave notice, by one of his clerks, to Hotchkiss, that the marble was out of the vessel and lying on the wharf. This was late in the evening; and on the morning of the next day Hotchkiss went to the wharf, opened the boxes, and found the marble broken. The question whether Hotchkiss acted within a reasonable time after he had notice was submitted to the jury.
Nash was an expert, and being such, his evidence was properly received.
Of the other questions in the case it is enough to say, that they have been considered, without finding that any error was committed on the trial. I am of opinion that the judgment should be affirmed.
Judgment affirmed.