Chicago & S. W. R. R. Co. v. Northwestern Union Packet Co.

Beck, J. — The principal points made by the assignment of errors are based upon instructions given, and refused by the court. These will be first considered. - I. An offer in writing made by plaintiffs to defendant’s .agent, to pay defendant $400.32 was shown. -i. tendee : • amount?110 The plaintiff requested the court to charge in effect, that if defendant refused to receive the sum tendered it was its duty at the time, “ to make any objection which it might have to the money and also to specify the amount of money required. If no such objections were made, and the ■ amount demanded was not specified, the defendant cannot now object to the tender, and is bound by the same.” This instruction was refused. The court directed the jury that “if .the agent of the defendant refused the tender without giving any special reason therefor, this would not discharge the plaintiff from paying any further sum to which defendant may be entitled.” The statute upon which plaintiff’s objections to these rulings ■are-founded, is in these words: “ The person to whom a tender is made must, at the time, make any objection which he may have to the money, instrument, or pnrperty tendered, or he will be' deemed to have waived it. And if the objection be to -the amount of money, the terms of the instrument, or the • amount or kind of property, he must specify the amount, terms or kind which he requires, or be precluded from objecting afterwards.” Rev. § 1818. ■ This statute contemplates two classes of objections when a tender of money is made: 1. To its character, i. e., objections founded on the money .itself without regard to its amount. The expression used is, objection to the money. This has no reference to the amount. [380] This objection, must be made at the time of the tender or it will be waived. 2. The other objection, contemplated relates to the amount of the money. But the statute does not require such an objection to be made at the time of tender, but simply provides, if it is made, the amount demanded shall be specified. This is the obvious meaning of the provision and is in accord with reason. As the tender in this case was not of the money itself, but by a written offer, no objection could have been made to the character of the money, and in fact the character of the money is not in question. Want of objection by defendant’s agent as to the amount tendered would not preclude recovery for the actual amount due. This is the purport of the ruling of the court below. 2 bill of lading: earner, II. The court directed the jury that if the barge was sunk by causes over which the defendant had no control, and for which it was not liable, it was charged with the ¿[^ty of taking all necessary means to save the iron, and for that purpose could employ the Bell Boat Aid Co., to raise and reload the cargo. If, in order to release the iron from the lien for salvage, defendant paid off and discharged the same, it could hold the iron until repaid for it's outlays made for that purpose, as well as for the freight dire thereon. It is not denied that it was the duty of ttie defendant to recover the sunken cargo, and that it had the right to employ another in doing so, paying a just and proper compensation therefor. Neither is it disputed that the salvors would be entitled to a lien upon the cargo for lawful salvage. Nor will it be denied that defendant, in order to enable it to perform its contract for transportation, was authorized to discharge the lien for salvage by payment. The salvage was a charge upon the cargo, and by its payment was transferred to defendant, just as in the case of the payment of any other charge which the carrier would be required to pay, in order to perform its contract for transportation, and which the owner or consignee of the cargo was bound ultimately to pay. The bill of lading, the contract for transportation of the iron, [381] provides for the very case made by plaintiff, and contemplated in the instructions under consideration. It stipulates that the cargo, shall be delivered to the consignee, “ he paying freight and charges.” Eegarding the salvage paid by defendant as charges upon the cargo it comes within the terms of the contract between the parties, and is to be paid at the same time the freight is payable. Under the very terms of this contract the payment of the freight and charges must be made, to enable the consignee or owner to demand or take the cargo. 1 Parsons Maritime Law, 143. In this view of the case it becomes unnecessary to follow counsel in the course of argument pursued by them. III. The court in. the instructions ruled that the iron replevied could be held by defendant until the freight and charges upon the whole cargo was paid. It appears that all the iron shipped except a few bars that were not recovered from the sunken barge, was delivered at Muscatine, and that plaintiffs had received from defendant 1,354 bars; the 329 involved in the suit being retained by defendant to'secure the freight and charges upon the whole cargo. If defendant had the right to retain all the iron until the freight and charges were paid, no reason can be given why a part could not be retained subject to its claim when the balance of the cargo was delivered to plaintiff. No possible prejudice resulted, by this course of dealing, to the plaintiff. IT. The court instructed the jury that if they found the, barge which sunk with the iron was sea-worthy, staunch and strong, and that defendant was not negligent in respect to the cargo or vessel, but was without blame, in that case the defendant is not chargeable with negligence even though a barge stronger and with larger timbers might have withstood the collision. This instruction is objected to on the ground that it fails to present the thought that the barge should have been reasonably fit for the voyage and the transportation of the cargo with which she was laden. But the character here demanded for the barge, the court, in at least two instructions, informed the jury must be made to appear from the [382] evidence in order to excuse defendant on account of the disaster to the vessel. The jury could not have failed to understand that all of the Instructions taken together announce this rule. 5. pleading : repievm. V. The petition alleges that the property replevied is of the value of $3,600. To this allegation of value no response f°mid in the answer. The verdict and judgment are for $5,082.20. Plaintiffs’ counsel claim that the judgment cannot he for a sum greater than the value of the property replevied, which is true enough. They insist that as the allegation of the value of the iron is not denied by defendant, it must be taken as true. They therefore argue that the judgment is erroneous. But counsel’s position is overthrown by consideration of the fact that an allegation of value in a pleading is not to be taken as true on account of a failure to controvert it. Bev., § 2917, Code, § 2712. The jury were rightly permitted to determine the value of the property replevied, from the evidence. We have considered all points aiising in the case and found no error in the record. Affirmed.