Goodenough v. Thayer

• Decision Date: 05 January 1882
• Citation: 132 Mass. 152
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Henry B. Goodenough v. Frank N. Thayer & another

132 Mass. 152

Henry B. Goodenough v. Frank N. Thayer & another

Supreme Court of Massachusetts

January 5, 1882

Argued November 9, 1881; November 9, 1880

Suffolk. Contract against the members of a partnership doing business under the firm name of Thayer & Lincoln. The declaration alleged that the defendants entered into a written contract with the plaintiff, a copy whereof was annexed and is printed in the margin, ^[*] for the conveyance of certain live sheep and hogs from Boston to London; that by the terms of the agreement, the defendants were bound to see that the sheep and hogs were supplied with suitable fittings to perform said voyage and with a sufficient quantity of pure water to support life and to keep the sheep and hogs in good health and condition during the voyage alleged delivery to the defendants, and a breach of the contract in not supplying sufficient water, whereby a large number of the sheep and hogs died during the voyage. The declaration also contained a count in tort against the defendants as common carriers.

At the trial in the Superior Court, before Aldrich, J., the plaintiff put in evidence tending to show a breach of the contract and a loss of sheep and hogs caused thereby. The defendants admitted signing the contract declared on; and put in evidence that the sheep and hogs were shipped under a bill of lading similar in form to that annexed to the contract, which contained the words in writing "as per contract," and the words "shipped on deck at shipper's risk. All loss or damage arising from any cause whatever to be borne by the shipper."

The defendants asked the judge to rule that the agreement declared on was the agreement of the owners of the steamship, and not that of the defendants. The judge ruled otherwise. The jury returned a verdict for the plaintiff; and the defendants alleged exceptions. The case was argued at the bar in November 1880, and reargued in November 1881.

Exceptions sustained.

L. S. Dabney, for the defendants.

E. D. Sohier & H. M. Rogers, for the plaintiff.

Endicott, J. Allen J., absent.

OPINION

Endicott, J.

There can be no question that the bill of lading, under which the plaintiff shipped certain sheep and hogs on board the steamship Atrato, and the special agreement of August 15, 1878, signed by the plaintiff and by the defendants as agents, are to be taken and construed together as one contract. It is true, a blank bill of lading is annexed to the special agreement, and made part thereof, but the written portions of the bill of lading actually signed are immaterial as bearing on the construction of the special agreement; and the principal question to be decided in the case is, whether the defendants, by the terms of the special agreement thus made part of the bill of lading, rendered themselves personally liable to the plaintiff. This question must be determined, as in all other cases, by an examination of the paper itself. Carpenter v. Farnsworth, 106 Mass. 561. We are of opinion that, upon the fact of the agreement, it appears to be the contract of the steamship Atrato and her owners, and not the contract of the defendants personally.

The defendants in the body of the agreement disclose their principal, for they describe themselves as agents of the steamship Atrato, and they do not sign the instrument personally, but as agents. The case does not fall, therefore, within that class of cases, cited by the plaintiff, where the instrument does not disclose the name of the principal; Winsor v. Griggs, 5 Cush. 210; Stackpole v. Arnold, 11 Mass. 27; nor within the other class of cases cited, where, although in the body of the instrument it appears, or is to be inferred, that the party signing is agent, or is acting in behalf of other persons, the instrument itself is signed by his own name only. Simonds v. Heard, 23 Pick. 120. Tippets v. Walker, 4 Mass. 595. Packard v. Nye, 2 Met. 47. Bank of British North America v. Hooper, 5 Gray 567. Morrell v. Codding, 4 Allen 403. Parker v. Winlow, 7 El. & Bl. 942. In these cases it was held that there was a personal undertaking by the defendant.

Nor can it be said that the recitals in the body of the instrument that the defendants were agents of the steamship Atrato, and their signature thereto, describing themselves as agents, were mere descriptio personarum, as in Seaver v. Coburn, 10 Cush. 324; Fiske v. Eldridge, 12 Gray 474; Tucker Manuf. Co. v. Fairbanks, 98 Mass. 101; for the agreement contains express stipulations on the part of the steamship Atrato, and express provisions touching the liability of her owners. As where it recites, "steamer agreeing to put on board a condenser capable of supplying the stock with water in sufficient quantities;" "the captain, in case of emergency, is to allow some of his officers or crew to render all the assistance they can in the securing of stock or provender, which may, from stress of weather, or other unavoidable cause, have got adrift; such assistance to be gratuitous, and without liability to ship-owner." By the agreement the plaintiff is to "find food and attendance in all respects suitable for said stock," and the agreement provides, "the attendants of the stock not to exceed in number, to be provided with passage out and return free of charge, but without liability to ship-owner." The freight is not payable to the defendants, but is payable in London before the cattle are taken ashore, "the steamer having a lien upon the stock until payment." These and other provisions of similar character relate to the duties and liabilities of...