Walker v. Cassaway

The judgment of the court was pronounced by Slidell, L The evidence in this case shows that the plaintiff had a quantity of oats at Brandenburg, a town on the Ohio below Louisville. They were in charge of Gallagher, a merchant of that place, who was authorized to ship the oats to New Orleans, when a written order to that effect from Davenport, the plaintiff’s agent at Louisville, should be presented to him. The river was low at the time, and freights were unusually high. The captain of the steamer Western was at Louisville, and heard of a sudden rise in the river through travellers who had come down the river. He knew this would reduce the price of freights. He arrived at Brandenburg before the intelligence of the rise in the river had been received ; and induced Gallagher to ship the oats on his vessel, by untruly representing that the plaintiff’s agent at Louisville had verbally authorized him to get the oats at the freight of fifty cents per sack to New Orleans. A bill of lading was given by the Western, contracting to carry and deliver the oats at New Orleans to the plaintiff. In the body of the bill of lading was inserted the clause, “with the privilege of re-shipping.” The Western not making the trip to New Orleans, but proceeding to St. Louis, re. shipped the oats at the mouth of the Ohio, on board the steamer New World, of which the defendant was master. This second bill of Jading was to deliver the oats at New Orleans, at a freight of twenty-two cents per sack, to one Fleming, then the clerk of the Western, and who came to New Orleans in the New World. The only reason for this arragement was that the captain of the New World was unable to advance the Western’s share of the freight. When the oats arrived at New Orleans, the plaintiff demanded them of the master of the New World, who refused to deliver them without the payment of freight. The plaintiff then brought the present action to recover them. The defendant reconvened and demanded the amount of his freight. Tho judgment of the lower court was against the plaintiff, and in favor of the defendant for $382 86, the amount of his freight at twenty-two cents per sack. The plaintiff appealed. As the contract for the transportation of the oats from Cairo to New Orleans was made by the defendant in good faith, at a reasonable rate, within the limit of the total freight originally stipulated, and with a party who held a possession apparently fair, under a bill of lading authorizing a re-shipment, we think the defendant should not be deprived of a remuneration for his labor, by reason of the bad faith of the Western’s captain. Gallagher had been entrusted with the possession of the oats by Walker. He was the agent to ship themtoNewOrleans; and although he disobeyed in. structions, a third person who has acted in good faith upon the confidence of a contract made and a possession transferred by him, must not be permitted to suffer. We see no reason for distinguishing this case in principle from the case where a factor sells goods for a less price than his commission directs. In such cases the factor acts without authority, yet the sale nevertheless binds his principal. The buyer is not affected by the private order or direction with which he is unacquainted. The owner must take care whom he employs. Where ene of two innocent persons is to suffer, he ought to suffer who has placed his property in the hands of a careless agent, rather than those who act in good faith upon the confidence of what the agent has done. If the public are to be affected by undisclosed breaches of duty of this sort, or secret equi« [21] lies existing against a party holding a possession apparently fair, and in the usual course of business, commerce would be seriously injured. It may be conceded for the purposes of our present inquiry, that the Western's owner would be entitled to no freight at all. But the shipper gave up the possession under a contract which contemplated the employment of a new carrier, and thus the captain of the Western was clothed, as regards third persons, with authority, to do what he has done. It is said that the second carrier was the mere agent of the first. The authorities relied on are cases where the owner sought to make the first carrier liable for goods which, under his contract, he undertook to deliver at a certain point, though in reality only performing a part of the transportation himself. See 19 Wendell, 329, 534. 25 Wendell. 660. But we find nothing in those cases establishing the principles that in case of a contract, made as this was, with privilege of re-shipment, the second catrier would not have a lien for his remuneration. It must be observed that the freight from Cairo claimed by the defendant fell within the amount stipulated for the whole route. See the authorities quoted in Russell on Factors, p. 78. Story on Agency, 443, 388. The plaintiff complains that the judgment did not in terms give him a judgment for the oats. The judgment may be properly interpreted with reference to the pleadings and proceedings in the cause. The plaintiff had the oats sequestered, and his prayer was that they be delivered to him. The defendant in his .answer pleaded that he had a privilege upon the oats for his freight at twenty-two cents a sack, and that the plaintiff was bound to pay him the amount before he could recover them. Upon the filing of this answer, the plaintiff, •“ on suggesting to the court that the defendant claims but 35382 26, as a lien upon the oats sequestered in this case, and upon it appearing that the defendant has not applied to bond the same.” had an order to bond the oats, upon giving security in the sum of 35500. In obedience to this order, the sheriff delivered the oats to the plaintiff, taking from him a bond for 35500, conditioned that the plaintiff should not send the property out of the jurisdiction of the court, and that he would faithfully present the same in case he should be decreed to restore the same to the -sheriff or defendant, and would satisfy such judgment as should be rendered in the suit. A judgment ought, if .possible, to put at rest the issues between the parties, :and close the door to further litigation. Although the judgment might have been expressed in more formal terms, we consider it, viewed as a whole and with reference to the pleadings and proceedings in the cause, as substantially closing the contest between the prrties; leaving the plaintiff in possession of the oats, but decreeing him to pay the defendant his freight, for which payment the bond stands as security. Upon making that payment the rights of the defendant will be satisfied, and the plaintiff exposed to no further responsibility or litigation. Judgment affirmed.