Hurd v. Hartford & New York Steamboat Co.

Seymour, J. The facts out of which the present controversy arises are in substance as follows : The defendants are the owners of a line of steam boats engaged in the transportation of passengers and goods between New York and Hartford, touching for delivery of passengers and freight at Middle Haddam and various other landings on Connecticut River. The goods replevied were shipped at New York, consigned to the plaintiff at Middle Haddam, where they arrived at three o’clock in the morning. The plaintiff was not at the boat to receive his goods. One Jolmson owns the wharf and a storehouse there and was also for certain purposes an agent of the defendants. He, as his custom -was, took charge of the goods, placed them in his storehouse for safe-keeping, and held them in readiness to deliver to the plaintiff upon payment of freight and a small charge for storage. At nine o’clock the same morning the plaintiff called for his property, and offered to pay the freight, less Johnson’s charge. This the plaintiff refused to pay, and thereupon Johnson retained possession of the goods, claiming a lien on them to secure payment of the charge for storage. The Superior Court finds that Johnson’s charge was reasonable for the services which he rendered, and also finds that the custom of making it prevailed at Middle Haddam and at all other landings on the river at which the defendants’ boats merely touched. The regular charge was ten per cent, added to the freight bill; that is, the defendants made out a freight bill charging a-certain sum ; and then ten per cent, was added to the bill by Johnson for storage and care of the goods after landing. The Superior Court also finds that the custom of making this charge was known to the plaintiff, he having been in the habit of receiving goods by the defendants’ boats. It is not distinctly found whether the goods after landing were in the possession of Johnson in his character of agent [54] of the defendants, or in his character of wharfinger. The plaintiff insists that the defendants were bound as common carriers to have an agent at the wharf to keep freight a reasonable time and to deliver it to consignees, and that they were not at liberty to deliver goods to a wharfinger immediately on the arrival of the boat, and that Johnson must therefore be regarded as an agent of the defendants for all purposes of the custody and care of the goods until the plaintiff demanded them at nine o’clock of the morning. ■ This question of the defendants’ duty in the premises is not regularly before us and we are not called onto decide it. We are content to adopt the plaintiff’s construction of the record, and to treat Johnson as in fact an agent of the defendants, having the care and possession of the goods as such, and retaining possession under the defendants’ authority to enforce the lien in controversy. This being so, it is obvious that the duty of the defendants as common carriers is divisible into two parts:. first the transportation of the goods and landing thorn at the wharf; and second, their safe keeping and storage a reasonable time after the landing and their ultimate delivery to the consignee on proper demand. This second part of their duty is an important one, attended with some labor and expense, and requiring care and caution. There can be no doubt of the right of the defendants to charge for the performance of this part of their duty, as well as for performing the transportation to the wharf; and they may either charge a gross sum for the entire service, or they may divide their charges according to the foregoing division of their duties. Upon a fair construction of the facts found by the .Superior Court the defendants seem in this case to have done nothing more, than thus divide their charges — to wit, a certain sum for transportation to the wharf called freight, and then a certain further sum,' adding one tenth to the freight proper, for safe keeping, storage and delivery to consignee in cases where the consignee is not at the wharf to receive his goods on the' arrival of the boat. The plaintiff however insists that this charge of a tenth is made by Johnson as an individual, and is for his benefit, and. [55] is wholly kept by liim, and is a petty outside exaction. It is true that Johnson is permitted to take the ten per cent, for his own benefit, but it is to be borne in mind that Jolinson owns the wharf at which the boat lands, and owns the storehouse where the plaintiff’s goods were deposited, and the entire duty of the defendants as common carriers after the landing is performed by liim. It seems therefore natural and right that he should be permitted to take and keep the ten per cent, as a compensation for the performance by him of those duties. These duties pertain to the defendants, and are performed by Johnson as their agent. The compensation must therefore by fair construction come to him as agent in the first instance, though ultimately his own by his arrangement with the defendants. It is to be noticed that these goods were not shipped under any special contract. In the absence of a special contract they were taken and carried under the contract which the law implies, arising from the known customs of the business, to wit, to pay the customary price. If the goods had been shipped under a contract to deliver them to the consignee at Middle Iladdam for a given price, that price might well he held to be a full compensation for the entire duty of the defendants as carriers of the goods, including the caro and storage of them and their delivery to the consignee upon demand within a reasonable time after the arrival of the boat. But here there being no special contract touching freight, and there being an established, custom to make the charge in dispute in the divided form above mentioned, and the plaintiff being fully acquainted with it, that custom becomes part of the implied contract under which the goods were shipped. The Superior Court is advised to render judgment for the defendants. In this opinion the other judges concurred.