Lee v. Salter

By the Court, Nelson, Ch. J. 1. The proof of usage, in this case, which was full and to the point, settles the question as to the liability of the defendants. They are to be deemed well acquainted with the usual course of the trade and business in which their vessel was engaged; and bound to conform to all the duties and obligations imposed thereby, unless otherwise specially provided for. The master should not have delivered the cargo to the consignee, and thus discharged the lien for the back freight and charges, until these had been first satisfied. This duty the course of trade as proved imposed upon him, and, through him, upon the owners, as effectually as if it had been expressly stipulated for in the bill of lading. (Cooper v. Cane, 19 Wend., 386, and cases; Dawson v. Kittle, 4 Hill, 107.) The case of Kemp v. Coughtry, 11 Johns., 107, is very analogous to the one in hand, as respects the point in question. There the vessel" was employed in the transportation of goods between the cities of Albany and New York; and, according to the course of trade, it was the business of the master to sell the cargo, if required, and bring back the money to the owners without any commission or compensation, except the ordinary freight. Part of the proceeds in this case had been stolen from the cabin of the vessel, and the question was, whether a suit could be sustained against the owners. [166] The court held it might, as the sale of the goods, and return of the proceeds, were a part of the duty attached to the employment and arising out of the usual and ordinary course of the business, where no special instructions were given. Here, according to the course of the business, the master virtually tabes an assignment of the lien on the goods, which the forwarder has for his advances,- for the purpose of collecting the same of the consignee, and engages to perform the service as part of his duty attached to the employment, and as an inducement to letting him have the freight. 2. The defendants offered to prove that the goods were damaged in the course of the voyage, by the act of God, to an amount exceeding the claim of the plaintiffs, which was rejected as irrelevant and immaterial. It is difficult to perceive what bearing the fact, if proved, could have upon the case. For, granting that the carriers., are not responsible for the loss, as happening from inevitable accident, it is not pretended but that the goods were still abundant security for the charges, which is all that could be important, so far as the rights or interests of the defendants are concerned. If they could have shown that the value of the goods had fallen, by reason of the accident, below the amount of the lien, the proof might have been material as to the amount of the recovery. But no such offer was made, or fact pretended. 3. It is supposed, that the suit should have been brought in the name of the persons composing the firm of Bice, Salters <& Co., as the bill of lading delivered to the forwarders. mentioned the goods as shipped by this house. It is conceded that the goods were, in fact, shipped by the plaintiffs ; and that the house of Bice, Salters & Co., which was the old firm that had just been dissolved, was inserted by mistake." It also appears, that the bill of lading retained by the master was correct, and described the goods as shipped by the plaintiffs’ firm. Taking the two bills together, it is left equivocal which house in fact shipped the goods; and it seems to me, under the circumstances, it was proper to let in oral proof for the purpose of explaining the ambiguity and ascertaining the truth of the case. [167] The case of Ganete et al. v. Handley, 4 B. & Cr., 684, goes further than is necessary here. There the firm was allowed to sustain an action upon a guaranty addressed to one of the members, by name, on showing that it was given for the benefit of all. The firm, in fact, advanced the money, to secure the payment of which the guaranty was given.' See also Davenport v. Backstrow, 1 Car, & Pay., 89, and Willis v. Barrett, 2 Stark., 29. Judgment affirmed.