Grieff v. Switzer

Spofford, J. We find no error in the judgment to the prejudice of the defendants and appellants. They contracted to carry fifty hogsheads of sugar for the plaintiffs from New Orleans to their consignees in St. Louis, (the dangers of the navigation and fire only excepted) at a freight of 40 cents per hundred pounds. They delivered only eleven hogsheads in conformity with their contract. This default being proved, it devolved upon them to show that the remaining thirty-nine hogsheads were lost by reason of one of the perils excepted by their bill of lading. Angelí on Carriers, § 472. This they have not attempted to do. But they complain that the District Judge erred in assuming that the missing hogsheads weighed 1000 pounds each. The plaintiffs, joining in the appeal, contend that the Judge erred to their prejudice in not allowing the weights as estimated at New Orleans, where they bought the sugar, just before the shipment, and in not awarding a sufficient sum for the value of the sugar at the port of destination. The complaint of the appellees appears to be well founded. There is nothing to cast suspicion upon the fairness of the purchase by the plaintiffs from their vendors. Tt was in the usual course of business. They paid their money, at an unsuspicious time, for the sugar according to the weights, as certified to by a public weigher. His testimony is positive as to the portion of the sugar weighed by himself, and the evidence of the broker is satisfactory as to the size and general weight of the lot. The measure of the carrier's liability is the market value of the commodity at the destined port. In this case the evidence satisfies us that the value of the article shipped was 5-J- cents per pound at the port of St. Louis at the time it should have been delivered. From the total value of thirty-nine hogsheads sugar, weighing 1077 .8 pounds per hogshead, at cents per pound, should be deducted freight at 40 cents per 100 pounds to obtain the balance due the plaintiffs. It is, therefore, ordered and decreed, that the judgment of the District Court be amended in favor of the plaintiffs, and it is adjudged and decreed that they recover of the defendants, in solido, the sum of two thousand and thirty-eight dollars and forty-nine cents, with five per cent, interest thereon from the 9th November, 1853, until paid, and costs in the court below, and that the privilege of the plaintiffs upon the steamboat D. S. Stacy for said sum be recognized and enforced; it is further ordered that the costs of this appeal be paid by the defendants and appellants.