Potter v. Lansing

Tompkins, J. The declarations of the plaintiff’s attorney offered as evidence on the trial, prove nothing more than his opinion, at that time, of-the solvency of Briggs. This would not be legal and proper testimony of that fact; and had the attorney himself been alive, and produced as a witness, he would not have been permitted to give his own surmises, or belief upon the subject, but must have detailed facts that the jury might draw their inferences from them. The proposed testimony to establish the insolvency of Briggs was properly overruled. But the escape was before the day on which the writ was returnable ; and a recaption of Briggs by the sheriff before the return, might have been pleaded and would have shielded him in an action for the escape. If, therefore, the conduct or declarations of Mr. Remsen, who was the attorney of Potter, and had the contro til of the suit, had a tendency to throw the sheriff off his guard, or to induce him to forbear to make exertions to apprehend Briggs, such conduct or declarations ought to have had an influence in the cause, and should not have been excluded. In granting new trials, however, upon the subsequent discovery of testimony, or for the rejection of testimony offered, we ought to consider whether it would, or ought to vary the issue of the cause; if it. would not, the court' will not send the cause again to a jury. In the case now under consideration, the declarations of Remsen were made after the sheriff had used the most active exertions, and had spent large sums of moneyto retake Briggs, and after his agents had returned from. Massachusetts, and abandoned the idea of retaking him.-— — 223 — Though not expressly stated ; yet it is to be inferred from the case, that before the declarations of Potter’s attorney were made, the return day of the writ had passed. Under these circumstances, it is evident that the observations of the attorney could have had no tendency to prejudice the sheriff, or relax his exertions, and, therefore, if admitted, ought not to have varied the verdict of the jury* It is impossible to determine whether the circumstance, of the defendant having made a false return to the writ, operated on the minds of the jury to increase the damages. The judge was perfectly correct in stating to them that the return was legally false» But I do not think, that even if the sheriff knew it to be so, it ought to aggravate the damages. The true question is, what has the plaintiff lost in consequence of this escape ? The alleged false return by the sheriff, neither adds to, nor diminishes the loss, 'and, therefore, the solvency of Briggs, or his capacity to pay, must determine the quantum of damages sustained. If the circumstance of a false return be a substantive ground of damages, it would follow, that where the person escaping was perfectly solvent, and the sheriff makes a false return, the creditor might recover in damages more than the full amount of his debt. But the damages are excessive, for another and much more cogent reason. The jury founded their verdict upon Potter’s right of action against Briggs, not only for the balance of the account current, but also for the goods specified in the bill of lading and invoice. It appears to be an invoice of goods shipped by John Potter, for Kingston in Jamaica, &c. on account and risk of Messrs. Richard and George Kinkead there, and cartage, wharfage, cooperage and commissions are charged by him to the Messrs. Kinkead,. By the bill of lading the goods are to be delivered to the latter, or to their assigns, they paying freight. It is not denied, that the bill of lading and invoice may be liable to explanation, but as the case is destitute of any proof, except the documents themselves, to shew file relation between the consignor and the consignee, the plaintiff must be regarded as a mere agent purchasing on commissions ; and any — 224 — property he might have had in the goods was divested by the delivery to the carrier, to be transported at the risk and expense of the consignees. If his property in the goods were divested by that delivery, no right of action for them could have remained. •In the case of Dawes v. Peck, 8 D. & E. 330, it is held that the right of action was to be governed by the consideration in whom the legal right to the property was vested.This principle was also adopted in Evans v. Martlett, 1 Lord Raym. 271, and in Snee v. Prescott, 1 Atkins, 248. The authorities commented upon in G East, 23, are decisive to show, that consignors in the situation of Potter in this case, cannot bring the action against the carrier. Potter was not answerable for the act of the captain, nor was he liable to the latter for the price of transportation, neither could he receive any injury from the non-delivery of the gqods, except so far as it might prejudice his right to stop in transitu. The consignees were liable to him for the price of the goods, whether they arrived or not, and for aught that appears by the case, he may already have received ofMessrs. Kinkead the invoice amount. Nothing has been disclosed to show, that he has received any damage, in consequence of being deprived of the power of stopping in transitu, or that any necessity existed for the exercise of that right. Even if his equitable lien, or right of stopping in transitu, were destroyed by the act of the master; ■yet Every much question whether the remedy therefor would be upon the contract; as I am inclined to think redress for that injury, must be sought in a special action on the case, or in an action of trover. Inasmuch, then, as Potter could not have recovered the amount of the bill of lading and invoice in the original action against Briggs, damages ought not to have been allowed him, in this action, on that account. I am of opinion therefore, that a new trial must be awarded with costs to abide the event of the suit. Thompson, J. The principal question arising out of this case is, whether Potter, the plaintiff in this action, could have maintained an action against Briggs on the bill of lading signed by the latter ? To say that he_ could not, ap — 225 — pears to me so repugnant to the general rules of law, reíative to the rights of parties arising out of special contracts, that I should require the most unequivocal and binding authority to lead me to adopt such a conclusion. The bill of lading specified that the goods were shipped by Potter, and were to be delivered to Messrs. Richard & George Kinkead, at Kingston, Jamaica, or their assigns, they paying freight. It is true the invoice stated the shipment to be for account and risk of the Messrs. Kznkead. But the master’s con- ■ tract, by his bill of lading, was made with Potter, and the stipulation on his part was to deliver the goods to the consignees, they paying freight; and it does not, I think, lie in his mouth to call in question the right of property as between consignor and consignee. There appears some little confusion, and contradiction, in the reported cases and decisions on this subject. In the case of Evans v. Martlett, 1 Lord Raym. 271, it appears to be laid down as a general rule, that if goods be consigned by bill of lading to A, he is the owner and must bring the action against the master of the ship, if the goods be lost. The same rule appears to have been adopted in the cuseof Dawes v. Peck, 8 Term Rep. 330, and the court there seem to think the right of action vested in the party who was to pay the freight, whether it be consignor or consignee. Lord Kenyon says, the only case where the consignor can maintain the action is where he is answerable for the price of the carriage. Yet in the case of Moore and others v. Wilson, 1 Term Rep. 759, the payment of the carriage was not considered the criterion by which to determine the right of action. The action there, washy the consignor against the carrier, and it was allegedin the declaration, that the plaintiffs were to pay'for the carriage of the goods ; but on the trial it appeared, that the consignee was to pay. Mr. Jus. Butter nonsbited the plaintiff, but the nonsuit was afterwards set aside, and Butter said he had been mistaken in point of law, for whatever might have been the contract between the vendor and vendee, the agreement for the car~ riage was between the carrier and vendor. And in the case of Davis and Jordan v. James, 5 Bur. 2680, the consignors — 226 — were permitted on the trial to maintain their action against , 1 , , the common carrier. 1 he plaintiffs recovered, and on a motion for a new trial, it was urged that the consignee only could maintain the action; But Lord Mansjield said there was neither law nor conscience in the objection. The vesting of the property may differ according to the circumstances of cases, but it does not enter into the present question. This is an action upon the agreement betvoeen the plaintiffs and the carrier. The plaintiff .was to pay him: the action is properly brought by the person who agreed with, and was to pay him. If the payment of the freight be an immaterial circumstance in determining the right of action upon the bill of lading, according to the decision in the case of Moore and others v. Wilson, before cited, then the case of Davis and Jordan v. James goes the full length of giving the consignor a right of action, founded on the agreement contained in the bill of lading.' That the payment of freight cannot affect the rights of the consignor, appears to me manifest: that is matter of arrangement between consignor and consignee, and the reason why by the bill of lading, according to the usual course of business, the consignee is to pay the freight, is because, none is due, until the delivery of the goods. Upon the whole, considering the contradictions that appear in the books on this question, I think it more analagous to the general rules of' law applicable to contracts, to adopt the decisions which, give a right of action to the party with whom the contract was made ; and must still retain the opinion expressed by me upon the trial, that Potter had a ■good cause of action against Briggs, upon the bill of lading. With respect to my having misdirected the jury, in telling them, that if the sheriff had been, in their opinion, guilty of fraud in making the return he did on the writ, it was matter of aggravation, I have only to observe that if the idea communicated to, and received by the jury was, that they might give what is commonly called smart-money, beyond the actual damages of the plaintiff, it was undoubtedly in» correct, Rut I am satisfied that no such idea was commit — 227 — mcated by me, or understood by the mry, for they had just , , , , . , been told that they might give the plaintiff a whole demand, or less, according as they should judge that the circumstances of the case would warrant, but there is nothing that will afford the inference that they were told they might give more. Nothing more could have been understood by the expressions used, than that if the sheriff had been guilty of fraud in making the return, he must have done it with a view to defeat the plaintiff’s remedy against him for the escape, and could not, therefore, stand before the jury in a very favourable point of view. The amount of the verdict shows that tin remarks had not much influence on the jury in estimaihgthe damages. My opinion, therefore, is, that a new trial ought not to be grani-d. Livingston, J. The contract to deliver the goods having been made with Potter., must confer on him a right of action for their non-delivery. It would be without example to de-< ny a party, to whom, an express promise is made, whether as trustee, or in his own right, a remedy for its violation,— This would produce the singular case of a party’s having e right to break an engagement, without responsibility to him with whom it is made, merely because, it is possible some other person may have a remedy against him; or, what would be more strange, it would make the very act which consummates the bargain between the shipper and master, that is. the delivery, destroy the remedy of the former on the contract. To whom the goods belong is of no importance, if it be once conceded, which cannot be controverted, that the right of property may be in one, while another, by express agreement, may have a remedy for some negligence or misconduct in relation to it. Whatever, therefore, may have been the right of the consignees in this instance, Briggs cannot contest that of the plaintiff, founded, as it is, on his own written agreement. Nor can any one be injured, by a right of action, for the same wrong, subsisting in different persons at the same time, (which, however inconvenient, must sometimes happen) as a recovery by one, will always bar the other’s claim. But a right to sue the master is not only — 228 — matter of express contract here, but were it necessary or - , , , , proper to look beyond the agreement itseli, 1 should say, that it was a valuable one, conferred on the plaintiff by the bill of lading, not one which he held merely as trustee, ancl which we ought not to deprive him of, under an idea of the owner’s being changed, as soon as the goods are put on board. That the plaintiff had a right of stopping them, in transitu, in case of the bankruptcy of the consignees is conceded. From this, will necessarily follow the right of suing the master in the same event, in case of a delivery to the consignees after notice not to make it, or for .an indemnity for any misconduct on his part. If he could not, on such occasion, use his own name, it is not probable the bankrupt’s assignees would give him an authority to sue in theirs—so that, were the master ever so solvent, he would lose all recourse against him, and be obliged to come in under the commission against the consignees. In Davis & Jordan v. James,† and in Moore & others v. Wilson,§ the right of a consignor to sue a common carrier is well settled ; though in the first of these cases some stress be laid on the consignor’s paying the carrier, the true ground, which is there taken, and the one on which it ought to be placed, is that of the agreement. To determine in whom the right of action is, it is better to look to the party to whom the promise is made, than to the person from whom the consideration may proceed. None of the more recent cases, cited by the defendant, impair these authorities. That of Dawes v. Peck,† which looks a little that way, recognizes them both ; and Butter takes particular notice, that in those cases there were special agreements between the carrier and consignors, which did not appear in the case then decided. I take no notice of several other cases, that were cited because they only relate to the question of stopping goods in transitu, and are wholly impertinent to the one before us. Another point relates to the damages, which are said to be excessive.. On the proofs.before the jury, I should not have agreed to so large a verdict. But they, were the proper tudges of Briggs’ circumstances, and if they thought him — 229 — able to pay, the sum they have given is not extravagant, it being about one half of the plaintiff’s demand against him. I can hardly suppose the jury gave larger damages on account of the sheriff’s false return. The motion, therefore, for a new trial, must be denied. On the other point, I concur in the opinion of Mr. Justice Tompkins. Kent, C. J. and Spencer, J. concurred in the opinion delivered by Mr. Justice Tompkins. New trial granted.* Footnotes [†] 3 Burr. 2680. [§] 1 T. R. 659. [†] 8 T. R. 330. [*] See the case of D. & G. Ludlow v. Bowne & Eddy, ante, p. 1.