Merrill v. . Grinnell

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 596 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 597 The case is presented by the record in a form which requires us to review the conclusions of fact as well as the determination of matters of law. The questions are therefore substantially the same as those which would arise upon a motion to set aside a verdict or report, as being against the weight of evidence and against law. The defendants' counsel insists, in the outset, that the whole cause of the plaintiff is false and fabricated; that he was not a passenger on the defendants' vessel upon the voyage mentioned, and did not lose any property in the manner claimed. The evidence certainly presents some circumstances of a remarkable, and, at the first view, of a suspicious character. Strachwitz himself is the only witness who gives any evidence of his possession of the property in question, of his departure from Germany, or as to his presence on the vessel during any part of the voyage described by him; and he was not able to produce any document or paper, of any kind, showing his connection with the vessel or any of its officers, or the other passengers. In addition to this, the defendants produced what they claimed to be a correct list of the passengers in the vessel, upon that voyage; which was to a certain extent verified by the master, as a witness, on the trial, and which, although it embraced more than five hundred names, did *Page 598 not contain that of Strachwitz, nor any one resembling it, or which might be mistaken for it. Moreover, the master, who was examined on behalf of the defendants, denied having seen Strachwitz during the voyage, or at its termination, or at any time until shortly before the trial. With all these disadvantages, he was able to convince the intelligent referee, before whom the issue was tried, of the integrity of his statements, and of the general truth of his narrative, His account was substantially as follows: He said he was a native of Namslau, in Prussia; that after receiving a good education he commenced life as a common soldier, in the Prussian service, though he was the son of noble parents, his father being a baron and a person of considerable property; that he was raised to the rank of lieutenant, and, at the commencement of the year 1852, was stationed at Spandau with a part of his regiment; and that he there engaged in a duel with his captain, who was wounded, which circumstance compelled him to leave the country; for which purpose, with the assistance of some friends, he proceeded to Hamburgh by the way of Lansdorff and Berlin, with the purpose of embarking for San Francisco. The money and clothing which he claims to have lost, were furnished by his relatives or on their credit. That there was no vessel going from Hamburgh to California, and he was advised to sail for New York, which he concluded to do; that he was taken by a waiter in the hotel where he lodged to the office of one Rickerts, who represented himself as authorized to sell tickets for passage from Hamburgh to New York; that he purchased a ticket for New York, for which he paid $36; that Rickerts changed his money, which was in Prussian currency, into American coin, and furnished him with a bag in which to put it; that Rickerts saw the witness's trunk, and that the conversation respecting it took place as mentioned in the findings. There were other Germans who were also going to New York, and Rickerts sent a servant with them and the witness, and they proceeded in a steamer to Hull, and *Page 599 thence by rail to Liverpool — his ticket, purchased of Rickerts, serving him instead of payment of the fare. At Liverpool, this ticket was, by direction of the servant, exchanged for one for the ship Liverpool, which was done at an office on shore; that he then embarked on the ship; and that before sailing the passengers were assembled on the deck and required to show their tickets, after which they passed into a space formed by stretching a rope across, and from thence passed into the steerage. The witness said he showed the ticket he had received at Liverpool, passed into the open space, and was not required otherwise to pay for his passage; that the ticket was given up to the officer of the ship; that during the voyage an Irish passenger had his coat stolen, and search for it was made, and the witness, among others, was obliged to open his trunk, and it was examined in the presence of the doctor, the second mate, and the ship's boy, and, he said, they seemed to be surprised at its contents. The following morning, early, the witness missed the trunk. It was present, and he had been sitting on it, till he retired. He complained to the first mate, and demanded his trunk of him, and some search was made among the sails, and in the boxes of the sailors and steerage passengers, but no vestige of the trunk or its contents was found, except a leathern segar box which had been in the trunk; and nothing had been heard of it since. On the arrival of the vessel in New York, he said he endeavored to communicate with one of the small boats which surrounded the vessel, but they were not permitted to come near enough. A steamboat came alongside, and the doctor and passengers went ashore. The captain at the same time went ashore in a small boat. The witness was requested to leave the vessel, but he declined to go unless they would give him his trunk, but he was finally forced on board the steamboat, and taken ashore. He applied, in the first instance, to Mr. Schmidt, the Prussian consul, who advised him to go to a lawyer, which he did, *Page 600 taking along a person who could speak English and German, but the lawyer required him to advance ten dollars, which, having lost everything, he was unable to do. Finally the German society gave him a railroad ticket to Buffalo, whither he went in three days after his arrival, and he has not been in the city since. Since then he has had employment for some time as a private tutor in the family of a farmer, and after a time he was introduced to the plaintiff's attorney, and wrote or studied in his office as a clerk. It was thought advisable, he said, that he should transfer his claim to some other person, on account of his having to be a witness, and the plaintiff was suggested as a proper person. He is a relative of the wife of the plaintiff's attorney. He sold it to the plaintiff for $1,500, and received his note, which is still upaid. The foregoing is only an outline of the testimony of Strachwitz, who was examined and cross-examined at very great length, upon many facts and circumstances of his personal history not material, except as to his credibility. His testimony appears to me to contain a natural and not improbable narrative of the events as to which he was examined. It was either true in substance or ingeniously contrived. But he was confronted with the alleged list of passengers, and the absence of his name among those recorded there is a circumstance of great weight against him, if the paper is truly a list of the passengers, as it was claimed to be. But I think it is not. The document is headed: "Report and manifest of thecargo laden on board the Liverpool, whereof William P. Gardner is master," c. It contains five hundred and one names, and opposite many of the names is the words one box, two boxes,c., specifying the number, and amounting, in one instance, to as many as seventeen boxes. Where no entry of boxes is placed opposite a name, there is a mark (") such as in inventories and bills of parcels generally indicates that the number is the same as the last preceding entry. But such does not *Page 601 seem to be the precise meaning of this list. The mark usually denoting iteration means here that the persons, opposite whose name it is placed, have a certain connection with the boxes, last entered, as belonging to the same family or party. Thus, taking one case for an example, the entry is: Edward McCormick, two boxes. Eliza " " Sarah " " Margaret " " The family name of all the parties thus set down as the owners of one or more boxes, are not always the same, but the instances of that are sufficiently frequent to show the general intention of the entries. There are two instances where the marks of iteration are omitted, but it is easy to see that this was a mere error of transcribing or printing, the identity of name showing that they formed the same family group as in the other cases. The purpose of the paper was not, therefore, I believe, to have a list of all the passengers' names, but an account of the parcels imported, and the names of the emigrants claiming those parcels. This is apparent from the heading of the document which I have already referred to, which entitles it "a report and manifest of thecargo," c., without any reference to the names of the passengers. The master's oath, which is required to be delivered at the same time with the manifest, and which was given in evidence upon the trial of this case, omits any mention of passengers, and in no manner affirms anything on that subject. But if the provisions of law were observed as to this ship, in regard to the importation of emigrants, there was a distinct manifest of passengers altogether different from the vague paper which was given in evidence. For an act of congress, approved March 2, 1809, (3 Stat. at Large, 488,) contains an explicit direction which, on account of its important bearing upon this branch of the case, I transcribe: "§ 4. And be it further enacted that the captain or master *Page 602 of any ship or vessel arriving in the United States, or any of the territories thereof, from any foreign place whatever, at the same time that he delivers a manifest of the cargo, and if there be no cargo, then at the time of making report or entry of the ship or vessel, pursuant to the existing laws of the United States, shall also deliver and report to the collector of the district in which such ship or vessel shall arrive, a list ormanifest of all the passengers taken on board of the said ship or vessel at any foreign port or place; in which list or manifest it shall be the duty of the said master to designate particularly the age, sex and occupation of the said passengers respectively, the country to which they severally belong, and that of which it is their intention to become inhabitants; and shall further set forth whether any and what number have died on the voyage, which report and manifest shall be sworn to by the said master in the same manner as is directed by the existing laws of the United States in relation to the manifest of the cargo; and that the refusal or neglect of the master aforesaid to comply with the provisions of this section shall incur the same penalties, disability and forfeitures as are at present provided for a refusal or neglect to report and deliver a manifest of the cargo aforesaid." It seems to me highly improbable that the duty prescribed by this provision was omitted in the present case where so large a number of foreigners were brought into the country. The government, it is known, assumes to obtain statistics of the emigrations of persons by sea into the United States, and for that purpose provides statistical tables showing the nationality and the place of embarking and other particulars in regard to the emigrants arriving upon our shores. None of these things, it is obvious, are shown by the imperfect paper which was produced by the counsel for the defendants. That paper had, however, an appropriate office quite distinct from that of furnishing a manifest of passengers, as may be seen by a reference to other provisions of the revenue laws. The "wearing apparel and other personal baggage, *Page 603 and the tools and implements of a mechanical trade," of persons who arrive in the United States by sea, are declared free and exempted from duty, but an entry is to be made of them before a permit for landing can be granted; but the collector, instead of requiring a formal entry, may send an inspector or surveyor on board to examine the passengers' baggage and make report of it. (Act of 1799, 1 Stat. at Large, p. 627, § 46.) In practice, I believe, one of these officers makes a cursory examination of the trunks and boxes of the passengers, and allows them to be taken on shore without any formal entry. But there is a clause in the oath which the master is required to make, on delivering his manifest to the collector, to this effect: "that no packagewhatsoever of any goods, wares or merchandize have been unladen, landed, taken out, or in any manner whatsoever removed from on board, except such as are more particularly described and declared in the abstract or account herewith," c. (Id. § 30.) The oath of the master, which was given in evidence, contains this clause in the precise language of the act of congress. Where, therefore, goods, which would include passengers' baggage, have been taken on shore upon the summary examination of an inspector, without a formal entry, it is necessary for the master to deliver, with his manifest of cargo, this abstract or account. The names of passengers having baggage, and a statement of the boxes or parcels in which it was contained, would perhaps sufficiently answer this requirement. A compliance with this provision was, I am inclined to think, the purpose of the paper which is claimed to be a manifest of passengers. It was an account of this part of the cargo, which had been delivered without other authority than the summary examination of an inspector, and which was excepted out of the otherwise general oath of the master, that nothing had been removed. Now, when this vessel arrived in New York, Strachwitz had no trunk to be removed, if, as he testifies, it had been stolen on the voyage. If the officers of the ship had *Page 604 acknowledged the loss, they might properly enough have included his name and inserted an entry of his trunk on the list as a package which had been removed. But they had not done this; but, on the contrary, had repudiated his claims and forced him off the vessel without giving him any satisfaction respecting his property. He was in their view simply a passenger who had no trunk or box of which an account was required. His name, upon their theory, had no place on the list of passengers having baggage, and it would naturally have been omitted. Its absence, therefore, affords no presumption that he was not a passenger. If the defendants had produced the manifest of passengers authenticated according to the act of congress, it would, as a cotemporary document required by law to be made, have been presumptive evidence against the plaintiff upon the question of Strachwitz having been a passenger. It would not, of course, have been conclusive, as it would not have been in the power of the master to conclude him by an ex parte statement and affidavit. There was no satisfactory verification of the statement arising out of the testimony of the master. Only a part of it was in his handwriting, and what he did write was upon the information of others. He does not profess to have seen or known anything of the steerage passengers. Nor does he say anything, of his personal knowledge, respecting the presence or absence of Strachwitz. If he was able to say positively that there was no complaint that a trunk had been missed during that voyage, it would be something. But all he can say is that he does not know of the doctor and mate making search for lost baggage, but he declares that it was very common to have such searches. He cannot recollect the name of the doctor or second mate. Upon the whole I do not find anything in the document produced, or in the testimony of the master which should materially impair the credit to be given to the oath of Strachwitz. I have already said it was not confirmed by any other witness, or by any document. But for some considerations *Page 605 which I am about to mention I should say the case depended wholly upon his testimony. There are however in the testimony some coincidences which tend, I think, to confirm to some extent the evidence of Strachwitz. He was the first witness sworn, and his direct examination brought out a brief statement of his embarkation and arrival in New York and the loss of his trunk, and a description of its contents. He was cross-examined by the defendants' counsel apparently for the purpose of finding matter upon which he could be contradicted. It was a perfectly legitimate method of testing his credibility. It correctly assumed that it would be difficult for him to describe the incidents of a voyage if he was not on board the vessel, and that one who commanded the ship could readily confute him, if his story was a fabrication from beginning to end, as it was claimed to be. He was cross-examined upon this sensible system, and seems to have been required to mention any noticeable incidents which occurred during the voyage. Among others, he stated this: that he saw the captain's steward cruelly beaten by the hands and heels of the captain. There is no reason to suppose that such a circumstance would be an ordinary or common event in a packet ship. Strachwitz presumed to swear to it, with a knowledge that the master was present and was to be examined. It was a matter personal to him and one not likely to be forgotten. It was a thing which Strachwitz could not have known unless he was on board. What the master says on his examination, after having heard this testimony of Strachwitz, is this: "I believe I had a difficulty with my steward. * * Very likely I ordered or inflicted personal chastisement of this steward, but I do not recollect it; probably I did it if he deserved it. I will swear nothing about it." Question — "Will you swear that you did not do it by kicking." Answer — "I will swear nothing about it." In a subsequent part of his examination the master stated that he went to Canada three or four weeks after the ship reached New York. He said *Page 606 he did not know that he was prosecuted by the steward, but he said at last "I went perhaps partly on account of such prosecution." Now the degree of severity with which the steward was punished, if he was punished, or whether he deserved to be punished, is immaterial to the present question. The point is whether Strachwitz was able to state a circumstance of an unusual nature transpiring on board the ship, which is shown by the defendant's testimony to have actually taken place. If he could do so, he must probably have been present; and I think he did. Again, Strachwitz testified that during the voyage a sailor was obliged to run round the deck in a circuit. At the four corners were placed officers of the ship with pointed sticks, and stabbed him as he passed, three or four black fellows with ropes, and knots in them, following him, striking with the ropes until he fell down, and the captain struck him in the mouth with his heels. When interrogated, the master said he heard that a man was run round the ship, stabbed and struck, but did not see it. Such a thing, then, occurred during the voyage. That is sufficient to identify the transaction. The compelling a man to run round the ship, and to be beaten and stabbed, could not often occur, unless shipmasters are more brutal than is generally supposed. It did occur, or was said and believed to have occurred on this voyage according to the testimony of the master. Strachwitz says he saw it, which he could not have done unless he were present. It is not to be supposed that he invented such a story in pure wantonness and that it turned out to be true. Whether the captain saw it the took part in it, as Strachwitz says, or not, is not important. That is a question of veracity between the two witnesses, not material to the main issue; but the substantial identify of the transaction which, by the master's admission, was said to have taken place, and which Strachwitz says he saw, proves, or very strongly tends to prove, that Strachwitz was a passenger on that voyage. There are two other occurrences about equally pertinent, *Page 607 and several where the facts might have occurred on any voyage, and which, therefore, Strachwitz might have invented. The two instances which I have mentioned present some of those undesigned and unpremeditated coincidences which show the truth of a narrative more satisfactorily than a considerable amount of positive evidence. If Strachwitz was not a passenger, his statement of these transactions, which are shown to have taken place, must have been a pure invention. That they turned out to be true, if not literally, in such a sense, at least, as to substantially correspond, shows that Strachwitz's story was not a fiction, but was true so far as he asserted that he came to this country on that ship and on that voyage. There is one other circumstance to be adverted to before closing this part of the case. These persons, Strachwitz and the master, saw but little of each other on board the ship, if the former was actually there. The inability of the master to recognize Strachwitz proves nothing, as he may never have noticed him on board. But the master held a position which would render it probable that his person would be known and remembered for some time by every passenger. It is conceded that these persons had not seen each other from the time of the arrival of the vessel in New York, until about the close of the first trial, almost three years afterwards. Mr. Babcock, a witness for the defendants, who was their counsel on the first trial, swears that immediately upon his coming into the room Strachwitz exclaimedthat is captain Gardner of the ship Liverpool. There is no evidence that he had been otherwise informed of his identity with the master. Some discrepancies were shown upon immaterial matters between the statements of Strachwitz made on the first and the second trial, but they were not of a nature in my opinion to shake his credit. In determining disputed questions of fact, left doubtful upon the actual evidence, it is sometimes useful to inquire upon which party the onus rests to clear up the difficulty *Page 608 and dispel the doubt; and the general rule is that it is upon the party who possesses to the greatest extent the means of doing so. If I am right in supposing that there exists in the collector's office an authenticated list of passengers, sworn to by the master according to law, the defendants, whose officers prepared and delivered it at the custom house are the parties who should have procured and produced it. They had sufficient notice that the plaintiff would give prima facie evidence that Strachwitz was a passenger, for he had sworn to it on the first trial. They proposed to attack that evidence and to convict the witness of perjury and fraud. They were bound, I think, to obtain and give in evidence the manifest of passengers. It was scarcely fair to leave that behind and rely upon the other paper which does not profess to have been made up for that purpose. Then they called as a witness an officer of the ship, who, though first in rank, had the least to do with the steerage passengers, and who was not at all likely to have known Strachwitz if he really came over in the steerage; and they called no one who was at all conversant with that class of the passengers. The plaintiff, it is true, could have sent a commission to Germany and might possibly have shown the circumstances of his departure from that country, and thus have corroborated him. So it is probable that sufficient exertion would have enabled the plaintiff to find some of the German passengers, twelve or thirteen in number, who came over at the same time and might have remembered Strachwitz. It does appear from Strachwitz's testimony that he had made ineffectual enquiries for one of those. If he was honest and was really a passenger, as he says, he could not know and would not be likely to suspect that his statement that he was on board would be questioned. The first trial had not gone far enough to disclose that, as the plaintiff was non-suited on his own evidence. I conclude that there was other evidence readily obtainable by the defendants, if they are right in the controversy, which they have neglected to produce. *Page 609 Upon a careful examination of the testimony, I am of opinion that the referee came to a correct conslusion upon the main questions of fact. That Strachwitz sailed in the ship Liverpool on the voyage mentioned I do not at all doubt. That his trunk contained all the valuable things which he mentioned, we have only his testimony, given, I admit, under circumstances which create a suspicion of interest on his part. But the referee has believed him, and I see no ground for reversing that determination. He had some advantages which we do not possess. The cases are rare in which it would be proper to set aside the determination of the primary tribunal upon a question of fact depending upon the credibility of a witness not impeached or successfully contradicted. Whatever doubt may formerly have been entertained, it has been settled, for a considerable time, that the baggage of a passenger, entrusted to one whose business it is to transport persons and their baggage, and with whom the owner has embarked, is under the same protection as the goods which are entrusted to a common carrier of goods. (Powell v. Meyers, 26 Wend. 591.) That case having been determined by the court for the correction of errors, no further authority is needed than the opinions of the members of the court and the prior cases on which they rely. The only question upon which any uncertainty remains is, whether a proper sum of money, for traveling expenses, contained in the trunk of the passenger, is to be considered as a part of his personal baggage; and this is less clear than the former proposition upon the cases in this state. Assuming it not to have been adjudged, but to depend upon the reason of the thing and upon legal analogies, I am of opinion that it should be regarded as a part of the baggage. The reason why property of any kind is included in the contract of carriers of persons, is that it is the universal, or very usual, concomitant of a journey, whether by land or water, for the traveller to take traveling conveniences along with him. In the infancy of society, and now *Page 610 among barbarous people, persons may perform journeys without a change of raiment, and may rely upon charity or rapine for the means of subsistence. But this is all different now with us; and men who engage in the business of transporting persons from one part of the country, or of the world, to another, must make provisions for carrying also whatever may be reasonably necessary to the traveller, under ordinary circumstances, for the prosecution of the journey, or they will be wholly without employment. Nothing, of course, can be more essential to this end than an adequate supply of money for traveling expenses; and the amount must necessarily be measured, not alone by the requirements of the transit over a particular part of the entire route, to which the line of one class of carriers extends, but must embrace the whole of the contemplated journey, and include such an allowance, for accidents or sickness, and for sojournings on the way, as a reasonably prudent man would consider it necessary to make. Whether the amount claimed in the case of a loss would be reasonable or excessive in a particular instance, would depend upon the character of the journey and the special circumstances of the case. It is very clear that it would not include funds carried for the purpose of transportation or remittance, or for investment in another locality. It should be limited to money taken for traveling expenses properly so called. When thus limited, the principle does not involve any departure from the rule that the liabilities of the carrier are imposed in respect to the compensation paid, but is in strict accordance with that principle. The rule, as I have stated it, though not affirmed by express adjudications in this state, is not controverted by any adjudged case in the superior courts, but is more consonant with the general indications of judicial opinion than the one which would exclude money from the category of traveling conveniences. InHawkins v. Hoffman (6 Hill, 586), Judge BRONSON expressed a doubt whether a reasonable sum for traveling expenses, carried in a passenger's *Page 611 trunk, could be included in his baggage. The case did not involve any such question, and the remark was quite incidental and wholly obiter. The journey which was under consideration was a short inland one, and the judge's idea was that money for expenses was, in such case, usually carried on the person of the traveler. I think the remark scarcely accords with common experience in the case of long journeys, and it certainly does not, where the voyage is by sea and extends from one hemisphere to another, as was the fact in the present instance. In The Orange County Bank v. Brown (9 Wend. 85), NELSON, J., in the same incidental way, had intimated that a reasonable sum for traveling expenses could, in such cases, be recovered for. In Weed v. The Saratoga Schenectady Railroad Company (19 Wend. 534), a sum of $285, contained in a traveler's trunk, was recovered for, under a charge in which the reasonableness of the amount was submitted to the jury; and Judge COWEN prepared and delivered an opinion for denying a motion for a new trial, expressly approving of the manner in which the question respecting the money had been left to the jury. The other judges did not express any opinion upon that point; but a new trial was granted for another cause, namely, that the money did not belong to the passenger, but to another person for whom he was the bailee. In Taylor v.Monnot, in the superior court of New York (4 Duer, 116), the question under consideration arose collaterally. The action was brought against the keeper of a hotel, by a lodger whose portmanteau had been broken open and $353.54 in money contained therein stolen. The law was assumed to be that a traveler, whose trunk had been lost, could be a witness, from necessity, in his own action against the party liable to respond, as to the contents of the trunk, on the ground that no other person would be likely to know the same; but only in respect to personal baggage; and hence the question arose whether the money in question came under that denomination, the owner, who was the witness, being *Page 612 upon a journey from Europe. It was held by the court, upon a full examination of the precise question we are now considering, that it did. In Massachusetts the question is definitely settled by the case of Jordan v. The Fall River Railroad Company (5 Cush. 69). The sum of $325, placed in the trunk of a traveler, which was lost upon a very short journey, was recovered. The judgment was sustained by the court. Similar decisions have been made in Ohio, Tennessee, Illinois and Indiana, and in the court of common pleas of the city of New York. (9 Humphrey, 61; 11 id. 419; 10 Ohio, 145; Davis v. Michigan Central Railroad Co.,22 Ill. 278; Doyle v. Keyser, 6 Ind. 242; Duffy v. Thompson, 4 E.D. Smith, 178.) I am of opinion that the report of the referee in this case was not impeachable for including the $800 in coin contained in Strachwitz's trunk. He necessarily passed upon the reasonableness of the amount, and I see no ground for questioning his judgment. What remains to be said relates to certain specific exceptions taken on the trial. Strachwitz, when called as a witness, was objected to, and the only ground specified, in the first instance, was that no sufficient notice of his examination had been given. As section 399 of the code stood when the trial took place, no notice was necessary unless the person proposed to be examined was either a party to the action or a person for whose immediate benefit the action was brought. The proposed witness was not a party, and there was then no ground for saying that the action was brought for his benefit. But, immediately afterwards, the defendants' counsel proposed to examine him preliminarily "as to his interest as a witness." The objection of interest, on the question of competency, having been abolished, there was no propriety in such a preliminary examination. It was not proposed to show that the action was for his immediate benefit. The language in which the offer was made would not suggest such an idea. *Page 613 The defendants' counsel excepted to the ruling of the referee, by which Strachwitz was allowed to testify as to the value of the trunk from knowledge acquired since he came to this country; and to proof, by him, of the fact that he had made enquiries here as to the value of articles of that kind. Opinions of witnesses are received upon questions as to the value of chattels. The witness had been in this country five years, at the time of the trial. I think he was competent to speak of the value of the trunk here, and that there was no error in allowing him to state the means of knowledge which he had acquired. The quantity of linen clothes which Strachwitz swore was in his trunk, was much larger than gentlemen in this country are accustomed to carry on a journey however remote, or to possess. The circumstance tended in some degree to discredit his testimony. To obviate this, the plaintiff was permitted to prove a custom prevailing in Germany, by which large quantities of such clothing were accustomed to be kept by individuals. The reason of this is said to be that the washing is done much less frequently than with us, and hence the quantity of linen kept for use must necessarily be increased. I think it was competent thus to account for what seemed peculiar in the contents of the trunk. The objection based upon the alleged discrepancy between the complaint and the case as proved, was not well taken. Whether the duty alleged to be violated was to carry the trunk as freight, under the ordinary contract with a common carrier or as the baggage of a passenger, the obligations of the defendants were precisely the same. I am of opinion that under the former rules of pleading the evidence would have been admissible, as the obligation would have been correctly stated, and the consideration alleged only in a general way. But if I am mistaken in that, the fault was simply a variance in stating the consideration. The present practice requires such variances to be disregarded unless an affidavit is made according to the *Page 614 code. (Catlin v. Gunter, 1 Kern. 368.) It did not present the case of a failure of proof. There was sufficient evidence of the agency of Rickerts. The officers having charge of the defendants' vessel recognized the ticket which Strachwitz presented on board. That, although not the one which was received from Rickerts, was a ticket which was obtained by an exchange of the other, effected through the agency of Rickerts, by the person he employed to accompany the emigrants from Hamburgh. There is not the slightest evidence that he was himself engaged, on his own account, in any business of transporting passengers to America. The inference from the testimony is that he professed to be authorized to contract for passages in behalf of the several carriers between Hamburgh and New York. The defendants' officers recognized the engagement he had made with Strachwitz. It was objected on the argument that the demand was not assignable. There was no such point made on the trial; but it would not have been tenable if made. The assignability of such causes of action has frequently been affirmed in this court. (McKee v. Judd, 2 Kern. 622; Waldron v. Willard, 17 N.Y. 466. ) There is no ground for saying that a fraud was committed by Strachwitz in concealing or misrepresenting the contents of the trunk. He answered truly the enquiries of Rickerts, so far as they called for information on that subject. Besides, if I am right in supposing that the property and money in the trunk fell within the fair meaning travelers' baggage, it is precisely what the defendants undertook to carry, and they cannot pretend that they were deceived into attempting to carry something more. There were some other points made on the motion for a non-suit which do not call for any particular remark. I think neither of them were well taken. My conclusion on the whole case is that the report of the referee was right, and that the supreme court fell into an *Page 615 error in ordering a new trial. The order appealed from should, therefore, be reversed, and the judgment entered on the report of the referee be affirmed.