Lyon v. Alvord

Hinmam, J. Without referring particularly to the precise — 73 — state of the pleadings, in the county court, arising upon the plaintiffs’ motion to erase the third count from the declaration,, it is sufficient to say, that both parties claimed and insisted, that the justice, before whom the suit was originally broughtj had no jurisdiction of that count ; and that this appeared upon the face of the count itself. For this reason the plaintiffs moved to erase it; and the defendant moved to quash the whole proceedings; because this count, being originally contained in the declaration and appearing with the others in the copies sent to the county court, showed, as he insisted, that the justice had in fact taken jurisdiction and acted upon it. The county court held, that this count did not constitute any part of the plaintiffs’ declaration; and directed that it be disregarded on the trial of the cause. In this, we think the court was right. Immaterial matter will not vitiate a plea or declaration, even when it is incorporated in the plea, or in any of the courfts; but may be struck out, on motion, or wholly disregarded; and matter of which the justice had no jurisdiction, must be immaterial matter, so far as he is concerned. If it stood alone, it would be obvious that he could do nothing with it. He could render no judgment upon it, unless, upon a plea to the jurisdiction, he rendered a judgment dismissing it for the want of jurisdiction. If it was so incorporated into one of the counts, that it could not be separated from the matter of which the justice had jurisdiction, it would, undoubtedly, vitiate the count, and might, for that purpose, become material. But, as it is entirely separate and distinct from the other counts, its being included in the declaration with them, cannot have that effect. It is wholly unlike the case of misjoinder of counts. There was no misjoinder here, for the reason, that the 3rd count was not, in contemplation of law, before the justice at all. As the justice, then, had no power to take cognizance of this count, it was not before him in any proper legal sense : and his judgment must be presumed to have been rendered upon the counts of which he had jurisdiction. The county court, therefore, did right in considering this count as matter of which the justice had nothing to do; and in presuming that, he acted correctly ; and disregarded it, on the trial before him. Fox v. Hoyt, 12 Conn. R. 491. With the other two questions in the case we have had more — 74 — difficulty. First, in regard to the charge of the county court. The bill of exceptions shows, that the plaintiffs’ vessel, the Byron, on her way from Albany to West-port, with a cargo of lumber, a part of which was consigned to the defendant, was driven, by stress of weather, on a rock, in Long-Island Sound, and a hole broken in her hull; in consequence of which, she filled with water, and became unable to proceed on her voyage, and was in danger of sinking; that the plaintiffs thereupon procured her to be towed into the harbour of South-port; and there they procured another vessel, the General Mercer, to take the cargo to Black-rock, where it was delivered to the defendant, and he received it. But there was no evidence that the defendant requested any of the acts, either of towing the vessel into South-port, or in procuring the cargo to be transported to Black-rock. But the#pljiintiffs claimed, that by reason of the disabled condition of the vessel, after she struck, these acts were necessary to preserve the vessel and cargo, and to deliver the cargo to the defendant, and were proper subjects of a general average contribution, to be apportioned between all parties in interest ; and that the law would imply a promise from the defendant to pay the plaintiffs his just proportion of the expenses incurred by them. The defendant denied any liability, in consequence of said acts, and claimed, that, inasmuch as it was admitted, that the defendants had never requested the plaintiffs to do any of the said acts, or to incur any of said expenses, they could not recover. But the court charged the jury, in conformity to the plaintiffs’ claims, that they were entitled to recover the defendant’s proportion of this expense incurred in towing the vessel into the harbour of South-port, and in causing the lumber to be transferred to the General Mercer, and in causing the said lumber to be taken and unladed at Black-rock. The charge of the court, so far as it related to the towing of the plaintiffs’ vessel into the harbour of South-port, and lightening her there, in order to preserve the vessel and cargo, after the accident, was unexceptionable. General average means that contribution to which the owners of the ship, cargo and freight, become liable among them selves, or a voluntary sacrifice of a part of the ship or cargo, or a voluntary exnenditure of money, or performance of service, for the preservation of both ship and cargo, m a case of — 75 — general danger to both. Birkley&c. al.-v. Presgrave, 1 East, 220. 228. Lewis v. Williams, 1 Hall, 430. 3 Kent Com.232. It is therefore settled law to be found in the text-books, that where a ship or its cargo is in part voluntarily sacrificed to preserve the rest from impending danger, the loss must be borne by all parties concerned in the ship and cargo, in proportion to their respective interests. Phil, on Ins. 334. And when the cargo is put into lighters, in order to relieve the ship from a perilous situation, as to set the stranded vessel afloat, or lighten a leaky one and bring her into harbour ; the expenses incurred in such a measure are the subjects of a general average. Stephens & Benecke [by Phillips] on Average, 133. The equitable principle upon which this doctrine rests, is, that one party ought not to profit by another's loss, where it is necessarily incurred for the purpose of preventing further loss to all parties in interest. Is is, therefore, a rule, that unless the loss is voluntary, as well as necessary for the preser. vation of both ship and cargo, no contribution can be claimed. Marsh, on Ins. 462. Hence, loss by shipwreck, or a peril of the sea, is not the subject of general average ; but a loss incurred in order to save a vessel from shipwreck, or a peril of the sea, is. In this case, there was not any sacrifice of any part of the ship or cargo, like the cutting away of a mast, or the throwing a part of the cargo into the sea, in order to preserve the rest; and no claim is made for the damage to the vessel caused by the striking on the rock : that was an involuntary loss, occasioned by the dangers of the sea. But there was the voluntary expenditure of money, to save the ship and cargo from the sinking condition in which the disaster left them ; and this was as much the subject of general average, as a regular jettison, made in order to preserve the ship and cargo from the perils of a storm at sea. The case finds, that, by reason of the disabled and sinking condition of the vessel, after the accident, said acts were necessary for her preservation, and for the preservation of the cargo ; and being done for the benefit of all parties in interest, the expenses incurred in performing them, it would seem, ought to be borne by all. , „ Expenses incurred in recovering a vessel voluntarily run ashore to avoid danger, have been recovered as general average. Bradhurst v. Columbian Insurance Company, 9 Johns. — 76 — R. 9. So, expenses in getting off a vessel accidentally stranded, were held to be the subject of genera! average contribution. Bedford Commercial Insurance Company, v. Parker, 2 Pick. 1. And where, in consequence of cutting away a mast, an opening was made, which let water into the hold, and damaged the cargo, such damage was held to be the subject of general average. Maggratkv. Church, 1 Caines, 196. Indeed it is, as remarked by Jones, C. J., in Lewis v. Williams, l Hall, 430., a principle which runs through all the cases, that a sacrifice made for the rescue of the whole interest from a peril, which threatens the destruction of all, entitles the sufferers to contribution from those who are benefited by the loss. In the case under consideration, the expense was necessary to rescue the vessel and cargo from the peril of sinking ; it had the effect to save them ; and it was voluntary, or it would not have been incurred. We have no doubt, therefore, that this part of the charge of the court was correct. It was said in argument, that the plaintiffs having taken the lumber to transport and deliver it át West-port, for a compensation, are bound by their contract; and if their conveyance broke down, and they had to provide another, the expense of it ought to be borne by them, and not by the defendant. This would be so, if the breaking down was in consequence of a defect in the vessel or her equipments ; because it is the duty of owners of ships to see that they are competent to perform the particular service for which they are freighted. Lyon v. Mells, 5 East, 428. But this has nothing to do with an accident or disaster happening in consequence of a peril of the sea, which no human foresight could guard against. Such disasters are always excepted, if not expressly in the bill of lading or contract of affreightment, at least impliedly, unless indeed, there is a contract to deliver the goods at all events. The charge of the court, then, so far as it applied to the expenses incurred up to the time that the v essel and cargo were safely brought to South-port, was correct. But whether the expense of transportation, incurred after the lumber was safely put on board the General Mercer, was a proper subject «of general average, is a question, which, if it had been made in the court below, would be deserving of serious consideration. ■ • ■ ' It does not appear that this expense was any greater than it — 77 — would have been, to have transported tiie cargo in the plaintiffs’ own vessel, after she was repaired. Nor does it appear - that the vessel was so disabled, but that with very slight repairs, she might have proceeded and performed the voyage.' A hole was broken in her hull, by which she filled with water, and in consequence of this, she was unable to proceed, at the time. But it is the duty of the owner of a vessel, which has been injured by a peril of the sea, if she is capable of being repaired in a reasonable time, to repair her, and continue the voyage ; or he may hire another ship to carry the goods to the port of delivery ; and if he does either, he will be entitled to the whole freight, but to nothing more. Luke v. Lyde, 2 Burr. 887. Herbert v. Hallett, 3 Johns. Ca. 93. The general rule is, that the delivery of the goods at the port of delivery, is necessary to entitle the owner of the vessel to freight; and such delivery is a condition precedent, which must be fulfilled. 3 Kent’s Com. 219. And it is only where the original voyage is broken up, or the ship is so disabled that she cannot, in a reasonable time, be refitted, that any increased freight may be charged as arising from the hire of a new ship ; as, where a ship puts into a port in distress, and is condemned as unseaworthy, the master then becomes, according to the American cases, it is said, the agent of the owner of the cargo, and as such agent, he may act in the port of necessity for the best interest of all concerned, and may hire another vessel for the completion of the voyage, and charge the cargo with the increased freight; and in these cases, generally, he is entitled to nothing but such increased freight. 3 Kent’s Com. 212. In the case of Searle & Adams v. Scovill, 4 Johns. Ch. R. 218., which is one of the cases on which this doctrine rests, the ship had been condemned as unseaworthy, and sold for the benefit of all concerned, in the port of distress, and was, therefore, absolutely disabled from completing her voyage; and the master, by the advice of the American consul, hired part of another vessel to stow so much of the cargo as had not been sold, to pay expenses. For this service he agreed there should be paid the sum of 2000 dollars; and it was held, that the act of the master in contracting for the transportation from the port of distress to the port of delivery, was valid; but it was the increased freight — the 2000 dollars, that the defendant was — 78 — held bound to pay. in consequence of the new contract of -hiring made by the master. The other case to which Chancellor Kent refers, in support of this doctrine, is that, of Mumford v. The Commercial Insurance Company, 5 Johns. R. 262. In this case, the vessel was captured, and, with the cargo on board, was sent to Halifax, and libelled; the ship was acquitted, on the 20th of November, 1804, and restored, but the goods were detained for further proof. The master tendered the ship to bring the goods to New-York, the port of delivery ; but as they were detained, he sailed without them, and they were not released until May, 1806, when the owner of the goods was obliged to hire them brought, in another ship; and it was held, that the additional freight was a charge incurred by the capture, for which the insurers were liable. The insurers could not, in that case, have been subjected to any thing more; because, as Kent, J., remarked in his opinion, “ the insurer has, in general, nothing to do with the transportation.” Still the owner of the goods might, perhaps, have been liable to pay both the original freight for their transportation to the owner of the first ship, and the increased freight to the owner of the new ship: to the first, because he was ready and willing to bring on the goods; and to the second, because he did, in fact, bring them. But in Searle & Adams v. Scovill, he was not liable for the original freight. The freighter, after the voyage was broken up, was entitled to his goods without paying anything; because» as a general rule, and, except in extraordinary cases, the freighter is not liable to both the original and the increased freight also; and if, as we suppose was the case here, the lumber was delivered to the defendant, at Black-rock, as the port of delivery, then, the voyage being performed, the shipowners had earned their freight, and they were entitled to nothing more as transportation merely. Hunter v. Prinsep & al. 10 East, 378. 393. Herbert v. Hallett, 3 Johns. Ca. 93. Searle & al. v. Scovill, 4 Johns. Ch. R. 218. 3 Kent’s Com. 212. If this clearly appeared in the bill of exceptions, and the objection had been taken in the court below, we should have thought that that part of the charge of the court, which authorized the jury to give damages for the expense incurred in causing the lumber to be taken to and unladed at Black-rock, — 79 — could not be supported ; but no such distinction was taken, and it has not been made a question here. On the contrary, it appears that the defendant below objected to the whole evidence before the court, and claimed that the plaintiff was not entitled to any thing; whereas the greater part of the evidence was clearly admissible, and the plaintiff was entitled to the defendant’s proportion of all the expenses incurred, except such as were paid for transportation merely. This, therefore, not having been made a point, on the trial in the county court, ought not to vary the result to which we may come on other parts of the case; and it is noticed only that it may not be understood that we intend to sanction, as law, this part of the charge. Nichols v. Turney, 15 Conn. R. 102. By the bill of exceptions, it appears, that the original agreement was, to transport the lumber from Albany to West-port, and there deliver it to the defendant; but it was in fact taken to Black-rock, and there delivered. The object of this variation in the port of delivery, is not shown. If the going to Black-rock was only a part of the process of lightening the vessel, in order to save it and the cargo, or to fit the vessel for repairs, that the voyage might be completed, then it would be a part of the service for which the plaintiffs were entitled to a general average contribution ; and in this view of it, the charge of the court was correct. The plaintiffs recovered upon the second count in their declaration, and the defendant claims, in his motion in arrest, that this count is insufficient, because no consideration is stated or alleged for the promise mentioned in that count. And, as it is necessary in declaring upon a promise not under seal, to state the consideration on which it is founded, we have examined this count with some care, in order to see if it can be supported ; but we are satisfied, that it cannot. There is a total omission to state any sufficient consideration for the promise. The consideration in fact stated, is, the supposed benefit which the defendant, as consignee of the lumber, received by the saving of it. But as consignee merely, he received no benefit by the saving of the lumber. If he had been the owner, he would have received a benefit; and that would have been a good consideration for the promise. Hence, the plaintiffs’ counsel have attempted to show, that — 80 — the import of the language of the count, is, that the defendant - was the owner; and it is said, that the term consignee is often used as synonymous with owner. We are not aware of any such use of the term ; much less, that such is the fair import of it. That a man may be, and often is, both consignee and owner of goods, cannot be questioned; but still, all that is meant by the term, is, one to whom goods are consigned; and so far from any necessary, or even natural inference, arising from its use, that the consignee is in fact, owner, it is believed that the consignor is as often the owner of the goods consigned, as that the consignee is. The term is nearly synonymous with factor, a person to whom goods are sent for sale, or safe-keeping. The consideration is the very gist of the action of assump-sit; and though, when past or executed, it may be, and usually is, stated, by way of recital, and need not be directly averred; yet, it must, in some shape, be alleged and proved, or the action will fail. Gould’s Pl. ch. 3. sec. 47. It is said however, that the defect, if it be one, is cured by the verdict. We think otherwise. This is not the defective statement of a good consideration, nor is it the statement of any material fact from which it follows, as a necessary concomitant, that the defendant was either the owner of the lumber, or in any way benefited by the saving of it. It is rather a statement of an immaterial fact, as the consideration ; and, therefore, is what the books call the statement of a defective title. Ilad it been alleged, that the service was performed, or the expenses incurred, at the defendant’s request, that would have been good ; but neither that, nor any fact from which it can be inferred that the defendant was benefited by the service, is stated. In principle, the case is not distinguishable from what it would have been, if, instead of the use of the term consignee, the plaintiffs had alleged that the lumber had been sent, by the owner of it, from Albany to the defendant, as the agent of the owner; and then, after stating the accident, and the service performed in order to save the ship and lumber, in the manner which has been done in this count, it had been alleged, that “in consideration that the plaintiffs had incurred an equitable proportion of the expenses for his, the defendant’s benefit,” as the agent of the owner of the lumber, he promised. Ac. Such an allegation of consideration is — 81 — obviously bad, and is unaided by the verdict. Gould’s Pl. p. 427. sec. 13. Rushton v. Aspinall, Doug. 679. Dale v. Dean, 16 Conn. R. 579. In this opinion the other Judges concurred. Judgment reversed.