Taylor v. Steamboat Robert Campbell

Scott, Judge, delivered the opinion of the court. This was an action brought by the defendant in error against the steamboat Robert Campbell, for the non-performance of a contract of affreightment. [258] 1. One of tbs points made in the cause is, that a proceeding against a boat in rem for the non-performance of the contract, the subject matter of this suit, is not within the statute; that the captain of a boat cannot make future contracts for the transportation of freight, and that the only remedy for the breach of such contracts is, an action against the owners of the boat, as the statute was designed to render the boat itself subject to process, only in those cases in which the freight had actually been received on board. Opinions of judges in other states were cited in support of this view of the subject. But it did not appear that the statutes in those states were entirely similar to our own. Questions of this kind depend, for their solution, on the words of the law, and it is obvious that opinions based on statutes varying from ours, can have but little weight. Our law creates a lien, and gives an action against a boat, for all demands or damages accruing from the non-performance or mal-performance of any contract of affreightment, or of any contract touching the transportation of persons or property. These words are sufficiently comprehensive to embrace a negleGt or refusal to comply with a contract of affreightment, or for the transportation of property. The construction contended for would render the word “non-performance” inoperative, as all the cases claimed to be within the statute would be covered by the word, “ malfeasance.” We will not undertake to determine how far the captain is authorized to make future contracts binding the boat, but it is obviously for the interest of the owners of boats that captains, in their voyages up a stream, should have power to make contracts to take freight on their return. The denial of such a power would operate injuriously to the boats themselves, .as, without a contract, many would be unwilling to take their produce to the river for transportation. It is not an easy matter to ascertain who are the owners of a steamboat, and, when the owners are ascertained, they are usually found to reside at places remote from those at which their boat is employed ; heneo the law for the benefit of those who deal with boats has al [259] lowed an - attachment against' them i'or certain enumerated wrongs. 2. The hogs to be transported belonged to the plaintiff and John Taylor in partnership. Now, a contract made by an agent, in his own name, may be sued on by the agent; for it is a general rule that, wherever an express contract is made, an action is maintainable upon it, either in the name of the person with whom it was actually made, or in the name of the person Avith whom, in-point of law, it was made. ( Cothay v. Fennell, 21 E. C. L. 146.) The property belonging to partners, a contract made respecting it would, in point of laAV, be a partnership contract, and suit upon it would properly be brought in the names of the firm. But, as this'contract Avas made in the name of one partner, there is no principle of law which prohibits an action on it in the name of him alone by Avhom it Avas made. A mere agent, as we have seen, may sue on a contract made in his own name; a multo fortiori, the same thing can be done by a partner. If this matter stood as at common law, the foregoing would be the principles, it is conceived, by which the parties would be governed in the institution of a suit on this contract. Noav, as the statute has made other parties necessary, as advantage Avas not taken of that omission in the way and at the time pointed out by law, no exception could be taken at the trial for the want of proper parties. (Practice Act, art. 6, sec. 6.) Nor was there any variance, as the contract proved corresponded Avith that stated in the petition. 3. The evidence presents a neAv question, and one of some importante to business nien, in relation to the manner in which the execution of a contract, made through the medium of a telegraph, is to be proved. It is not expected, when men contract by telegraph, that they are afterwards to be bound or not., as-their passions or interests may dictate. Such contracts- must be regarded as binding and obligatory as if made in the ordinary way. Private communications relative to business, made by means of a telegraph, are usually relied on, and that reliance has not proved unfounded. When men consent to use the tel [260] egraph for the purpose of making an agreement, there is no hardship in submitting to a jury, as evidence of their consent to such an agreement, those facts and circumstances which are received by and acted on by mankind, in communicating through that medium. Here, the defence does not turn on any imposition or forgery on-the part of the agents of the telegraph ; but the plaintiff, by the pleadings, is put to the proof of the contract on which he has sued. The evidence is ample to show that a communication was made by the plaintiff to the defendant ; but the difficulty arises in showing that the answer to that communication was from the agent of the defendant. The telegraphic agent testifies that the dispatch received from the plaintiff was delivered to the officers of the steamboat Robert Campbell, and a dispatch in answer to that of the plaintiff was deposited in his office to be forwarded to the plaintiff, which was done on the next day. If, under such circumstances, any person had received a dispatch in answer to one forwarded by him, he would not have failed to act upon it. His conduct would have been based upon the faith usually given to the correctness and fidelity with which such business is transacted by the agents of the telegraph. For these reasons, we are inclined to the opinion that the evidence offered by the plaintiff was ’sufficient to permit tho dispatch to be read to the jury, who would then, from all the circumstances, determine whether it was the act of the master of the boat. 4. We do not consider that the principle which makes entire a contract for the delivery of a number of specific articles, and which relieves a vendee from the obligation of receiving a part of them as having any application under the facts of this case. Had the defendant refused to receive a less number of hogs than that stipulated, then the question, whether the number offered was a substantial compliance with the contract, would have arisen. Had less than the stipulated number been refused, other hogs might have been obtained, or the plaintiff might have been willing to have paid freight for the number agreed upon, in order that those on hand might have been transported to market. [261] 5. ..Considering the medium through which.the contract was made, and the fact that St. Louis is the great mart of. this state, and that all boats on the Missouri river make that place their destination, we are of the opinion that the dispatches sufficiently show that a contract of affreightment for four hundred hogs to St. Louis was intended by the parties. Had any other port than St. Louis been contemplated, the contract could not have been sustained. When a boat on the Missouri river agrees to take freight, every one understands the place to which it is to be carried. 6. It may be answered to the objection that the boat was prevented by ice from complying with her contract, that this ease falls within the principle of that of Collier v. Swinney, (16 Mo. Rep. 484.) Judge Ryland concurring, judgment affirmed.