Houghton v. Lynch

[88] By the Berry,J. I. The master, though in some respects the servant oí the .owner of a vessel, is regarded, in law, as more than a mere servant. He is held personally liable both to the owner of a vessel, and to the owner of goods put on board, for their loss by negligence, as well as for a failure to transport and deliver the same under a contract of affreightment. 2 Kent, 599; 3 Kent, 162; Dumlap's Palay on Agency, 398 ; Elliott vs. Russell, 10 Johns, 6; Schieffelin vs. Harvey, 6 Johns, 177; Shields vs. Davis, 1 E. C. L., 308; Edwards' Bailments, 435-6. By virtue of his special property in the cargo, his possession of the same, his right to control it for the purpose of protecting himself, a right corresponding to his responsibility to the owner of the vessel, and the owner of the goods, he maj’-, in his own name, maintain an action for freight, and for a taking or conversion of, or injury to the goods entrusted to his care. 1 Ch. Pl. 7; Kennedy vs. Eylaw, 17 Ab. Pr. 73; 1 Ch. PL. 151; Faulkner vs. Brown, 13 Wend. 63; 1 Sm. L. C., 6th Am. Ed., 600, Edwards' Bailments, 56, and . cases cited supra. The objection that the plaintiff is not the real party in interest in this case, and that the action is therefore improperly brought in his name, is untenable. II. Hpon the question of fact as io the delivery . of the cask of brandy to the defendant, the jury have found for the plaintiff, but it is insisted that “there was no evidence that the defendant received the property in question, or undertook to be responsible for its safe keeping.” As to the facts in regard to the delivery and acceptance of the brandy, there would seem to be no very material conflict in the testimony. As to the legal effect of the facts, as to whether they constituted a delivery and acceptance or not, the opinions of [89] the witnesses, as expressed in their testimony, are contradictory, but this is not very important. We think the jury were • warranted by the evidence in inferring, that this was a case of mistake, in which the plaintiff, having on board of his boat a barrel of whiskey for the defendant, inadvertently landed a cask of brandy belonging to another person, and destined to another point, in place of the barrel of whiskey, intending to deliver the cask to the defendant, and supposing that it belonged to the defendant. But we fail to discover any evidence in the case having a reasonable tendency to show a delivery of the cask to the de- ■ fendant, or any acceptance by mistake or otherwise of the same, by the defendant in place of his barrel of whiskey. Without such delivery and acceptance (and in the absence of any special undertaking, and none is claimed here) there would be no consideration to support any liability on his part, and the verdict could not be sustained. The strongest testimony against the defendant only goes to show, that he signed a receipt for a cask of brandy, and a barrel of whiskey, and that he saw the other cask of brandy, to which this suit relates, at the time of the signing of the receipt. This does not show a delivery, or that he received, or intended to receive, the latter cask in place of his barrel, or otherwise, and his subsequent conduct repels the idea that he did receive, or intend to receive it. The order .is reversed.