Dunseth v. Wade
| Decision Date | 30 June 1840 |
| Citation | 2 Scam. 285,3 Ill. 285,1840 WL 2919 |
| Parties | CRAWFORD DUNSETHv.STEPHEN J. WADE et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
THIS cause was tried in the court below, at the April term, 1839, before the Hon. Thomas Ford, who rendered a judgment for plaintiffs for $209, and costs of suit. The defendant excepted to the judgment of the court.
W. FRISBY and G. T. METCALF, for the plaintiff in *286 error, cited 1 H. Blac. 298, 359; 3 Taunt. 264; Oliver's Law Summary 292, 360-4.
S. T. LOGAN, for the defendants in error.
LOCKWOOD, justice, delivered the opinion of the court.
This was an action of assumpsit commenced by Wade, Lowry, and Hills, against Dunseth, for failing to deliver to the plaintiffs below, at Peoria, certain goods belonging to them, which were shipped on board Dunseth's steamboat, called the Indian, then lying at Cincinnati. The defendant pleaded non-assumpsit. The cause was tried, by consent of the parties, without a jury.
The bill of exceptions contains the following facts: A witness, on the part of the plaintiffs below, testified that he, as agent of Wade, Lowry, and Hills, received the bill of lading hereinafter copied, from the merchants in Cincinnati, who had shipped the goods on board the steamboat of Dunseth, at Cincinnati; that the goods belonged to the plaintiffs below, and never arrived at Peoria. That witness, at a subsequent time, had a conversation with Dunseth, in which he admitted that he had received the goods mentioned in the bill of lading, but said that he did not consider himself liable for the loss or damage of the goods, because, by the terms of the bill of lading, he was entitled to the privilege of re-shipping said goods on any good boat; that he had re-shipped said goods on the steamboat American, and that the loss happened while the goods were on the said boat American. The witness also testified that the goods lost were of the value of $194.75.
The defendant below having proved the execution of the bill of lading, which was produced on the trial, from the possession of the plaintiffs below, read the same as follows:
With privilege of re-shipping on any good boat.
Shipped in good order, and well conditioned, by Balbridge & Co., on board the good steamboat called the Indian, whereof is master for the present voyage, Dunseth, now lying in Ohio river; to say,
Sundries per margin; One bar of iron in dispute, being marked and numbered as in the margin, and are to be delivered in like good order and condition, (the unavoidable accidents of the river only excepted,) at the port of Peoria, unto Lowry, Wade & Co., or assigns, he or they paying freight for the said goods, at the rate of one dollar per hundred. In witness whereof, the master or clerk of said steamboat, hath affirmed to three bills of lading, all of this tenor and date, one of which being accomplished, the others to stand void. Dated at Cincinnati, the 13th day of July, 1836.
S. DUNSETH.”
It was also proved by the defendant below, that S. Dunseth, whose signature appears to the foregoing bill of lading, was clerk of the steamboat Indian, at the time the above goods were received on said boat, and at the time of the execution of the bill of lading. The defendant below also proved that the steamboat American was a good boat at the time of the re-shipment, and that she (the American) was sunk on her way to Peoria, in the Illinois river, with the plaintiffs' goods on board, by the steamboat Friendship running into her, (the American,) as witness understood, though he had no personal knowledge; and that the pilot of the American, at the time of this accident, was a good pilot, and that the sinking of the American was an accident, as he had heard say, and not occasioned by the negligence of her officers, or the mismanagement of the boat American, as he had also heard said. It was also said, that the boat American was afterwards raised, and most of her loading was saved; and he did not know but all the plaintiffs' goods were saved.
Upon this evidence, the court below rendered a judgment for the plaintiffs' below. The assignment of errors questions the correctness of the decision. This is a case of first impression in this court. We have searched for...
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