Steamboat Galena v. Beals

By the Court, Oole, J. In instituting a suit under chap.' 116 R. S., for tbe non-performance of a contract touching tbe transportation of property, it is absolutely essential that tbe complaint allege that tbe contract was entered into by tbe master, owner, agent or consignee of a boat or vessel, navigating, or used in navigating the waters of this state. This is a proceeding authorized and regulated by statute, and a party seeking to avail himself of it must bring bis case fully within its provisions. In. tbe present case tbe complaint states that the boat was one navigating tbe Mississippi River, which may be strictly true, and yet tbe boat not be used in navigating tbe Mississippi within this state. But a small number of tbe boats navigating that river, ever come within tbe boundaries of this state. And as this is a defect in tbe complaint going to tbe jurisdiction of tbe court, it was not aided by tbe plea of tbe general issue. Again; tbe statute gives this remedy for all demands or damages accruing from tbe non-performance or mal-performance of any contract of affreightment, or any contract touching tbe transportation of persons or property entered into by tbe master, owner, agent or consignee of tbe boat or vessel, on which such contract is to be performed. Sec. 1, subd. 3. It appears that the freight in the present case was paid to the clerk of the boat, and if the contract in reference to the transportation, was made with him, and we presume it was, it should have thus been alleged, and that the clerk was an agent of tbe boat: not that tbe contract was made with the boat. This latter objection may seem rather technical, but as already observed, this proceeding is oDe given by the statute, and these facts required by the statute, should appear in tbe complaint. Tbe complaint, therefore, which is the foundation of the suit, being fatally defective, tbe proceedings must all be reversed and set aside. It is impossible to determine from tbe bill of exceptions, whether there was, upon this trial, any proof of a demand of [94] the properly of the officers of the boat — before the commencement of the suit, or whether the boat had passed up and down the river without delivering it. There should have been we think, proof of the delivery of the goods to the officers of the boat, and that they -failed - or neglected t o leave them at the place to which they were consigned. If the receipt read in evidence should be considered sufficient proof of the delivery of the goods to the officers of the boat, it did not show that the goods were not delivered at the port, of destination when demand was made for them. Judgment of the Circuit Court must be reversed, with costs.