Collier v. Swinney

• Decision Date: 31 July 1852
• Citation: 16 Mo. 484
• Parties: COLLIER, Plaintiff in Error, v. SWINNEY, Defendant in Error.
• Court: Missouri Supreme Court

16 Mo. 484

COLLIER, Plaintiff in Error,

v.SWINNEY, Defendant in Error.

Supreme Court of Missouri.

July Term, 1852.

1.The law which controls the liability of common carriers does not begin to apply until the actual bailment is made.The act of God will not excuse a man for failure to comply with an absolute contract to receive and transport goods at a future time, merely because he is a common carrier.

Error to Saline Circuit Court.

Clark, for plaintiff in error, contended that the law governing common carriers does not apply.The defendant, though a common carrier, took upon himself, by his express contract, a duty greater than the law would impose, and having done so for a legal consideration, he cannot set up the acts of God as any excuse for his non-compliance with the contract.He ought to have guarded against such contingencies in his contract.Chitty on Contracts, 734;Thompson v. Miles, 7 T. R. 384.

The only acts of God which would excuse a common carrier are inevitable accidents not foreseen by him, and against which he could not guard.In this case the evidence showed none such.On the contrary, it showed that though the Wapello could not run, other boats were running.The contract of the defendant was to carry the tobacco to St. Louis; and if the Wapello could not run by reason of low water, he was bound to carry it on some boat that was running.Again, low water could have been foreseen.It is annual and certain.This, therefore, was not such an act of God as would excuse even a common carrier who had not made a special contract.Story on Bailments, secs. 25, 36, 489, 511;1 Peters, 66, 91, 221.

If low water would have excused the defendant for a given time, still he was bound to perform, or offer to perform, his contract, within a reasonable time after the obstruction was removed.

Adams and Leonard, for defendant in error.

The falling of the river was such an act of God as will excuse common carriers from the performance of contracts of affreightment.Story on Bailments, secs. 511, 545;Bowman v. Teal, 23 Wend. 306;Parsons v. Hardy, 14 Wend. 215;Hand v. Baynes, 4 Whart. 204, 210;3 Kent'sCom. 248, 249.

The contract of affreightment was entire and indivisible, and the plaintiff, by shipping ninety-eight hogsheads of the tobacco before there was any breach of the contract on the part of the defendant, put an end to the contract.

The master had no right, as such, to bind the owners to carry freight on any other boat, and if he had, no such contract is declared on, nor is there any proof of, any such contract.

GAMBLE, Judge, delivered the opinion of the court.

The defendant, Swinney, was part owner of the steamboat Wapello, and Eaton the master.She was employed as a weekly packet between Glasgow and St. Louis.Eaton contracted as master in 1846, with the plaintiff Collier, to transport the tobacco which Collier then had at Glasgow to St. Louis, for two dollars and fifty cents per hogshead; and such other tobacco as Collier might deliver at Glasgow on or before the first of September, was to be transported to St. Louis, in a reasonable time after its delivery, for two dollars per hogshead.Collier complains that tobacco which he delivered at Glasgow, prior to the first of September, was not transported to St. Louis by the defendant's boat, by reason of which neglect he was compelled to ship it on other boats at a higher freight, and by the delay occasioned by the breach of contract he lost the advantage of high prices in St. Louis.The defense to the action rested mainly on the facts that the river became so low in July that the Wapello could not navigate it; and that before it rose, the plaintiff shipped a part of his tobacco on other boats, and, finally, that before the river rose, the Wapello was accidentally sunk and lost.

It appeared in evidence that the Missouri became too low for a boat as large as the Wapello to navigate it, as early as the month of July, and continued low until after the first of September, although other boats continued to ply upon it, and transport freight during all that time.It also appeared that, during that period of low water, and after the first of September, the plaintiff shipped on other boats a part of the tobacco which the Wapello was to carry.

The court, at request of defendant, gave the following instructions:

“If the jury find from the evidence that after the making of the contract, and before there was any breach thereof, the river became so low as to prevent the steamer Wapello from carrying the plaintiff's tobacco from Glasgow to St. Louis, this was an act of God which excused the defendant from the performance of his contract, and the jury must find for the defendant.

The jury must disregard as any evidence in the cause all testimony going to show that the defendant contracted to carry out the plaintiff's tobacco, notwithstanding the river should become too low for the Wapello to run, and all testimony going to show that the master of the boat contracted to carry out the plaintiff's tobacco on another boat, in the event of the river becoming too low for the Wapello to run.

If the plaintiff delivered at Glasgow three hundred and forty-one hogsheads of tobacco on or before the first day of September, 1846, under the alleged contract, and the defendant was prevented by the low water from carrying out all this tobacco, during the year 1846, and the plaintiff, during the same year, and before the rising of the water, so as to enable the Wapello to run, shipped...