Marlatt v. Levee Steam Cotton Press Co.

Martin, J-, delivered the opinion of the court. The petition charges, that the defendants contracted with the plaintiffs’ agent to unload a boat load of coal, for a fixed price; that the boat was, for that purpose, delivered into their care and custody; and that through their carelessness and neglect, the boat and coal were sunk and destroyed, wherefore he prayed for damages. The defendants pleaded the general issue. There was a verdict and judgment against them, and they appealed. Our attention is first drawn to a bill of exceptions to the charge of the court, instructing the jury, that, if they believed that the defendants engaged, or contracted, as agents of the plaintiff, to take charge of, and unload the boat, and that it was delivered into the charge of the defendants, it is not necessary for plaintiff positively to prove negligence, but., after showing a delivery of the boat, it is incumbent on the defendants to show that the boat was not lost through any negligence on their part. That the Louisiana Code, article 2299, was the law of the land; but that the part of the ar-tide which exempts principals from the consequences of the acts of their agents, which they could not prevent, was con [586] trary to general principles, and had, probably, been inserted inadvertently; but that the court did not think this article applied to the present case, because, no company can act, except through its president or other agents ; and in acts of ‘ ° , , ° , . this kind, the president, or other appointed administrator of the company, is the company itself, to all intents and purposes. Where a contract was made ■with the president or agent of an incorporated compaay to unload a boat, and, she was taken possession of by the slaves of the company and sunk soon after, the latter will be liable for the injury or loss, unless they prove it was the result of some event or accident not within their control. The proof of agency of an incorporated company, may be made by parole, when the witness swears he contracted with the president of the company by name ; and he is not asked the ground of his knowledge, that this person was the president or agent 5 and there was no exception to this proof by parole, on the ground that the authority of this agent ought to have been proven by writing, as a company could not appoint an agent by parole. It does not appear to us that the charge is an erroneous one, although we do not concur in the opinion expressed therein, that the article of the Code referred to, was inserted inadvertently. On the merits, the defendants, and appellant’s counsel has urged, that the loss was not proved to be the result of any fault in the defendants. That the defendants were not liable, because it was not proven, that the loss might have been prevented by them, and that they did not prevent it. It is in evidence that the boat was taken possession of by the slaves of the defendants, after the contract made with their agent, and by his order. The jury, therefore, correctly concluded, under the charge of the court, that the defendants were liable, unless they prove that the loss was the result of some event, not within their control. With equal corred ness, and under the direction of the judge, the jury disregarded the second point of defence. In the argument before us, it was urged, that the plaintiff must fail, because he has not proven the authority of the person who acted in behalf of the defendants in making the contract on which the suit is brought. The witness, who was the agent of the plaintiff in making the contract, has swdm that he made it with the agent of the'defendants, to wit: Mr. Lepretre, the president of the company. No attempt was made, by a cross-examination, to cause the witness to state the grounds of his knowledge of the agency of the person he contracted wilh. Neither was any exception made to the proof of this agency by parole, on the ground that the authority of this agent, ought to have been proven by writing, as a company could not appoint an [587] agent by parole. It is also proven, that after this contract, the boat was taken possession of by the slaves of the defendants, and it must be presumed, with the consent of the person to whom the defendants have committed the charge of those slaves. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.