Howard v. Old Dominion S.S. Co.

• Decision Date: 30 June 1880
• Court: North Carolina Supreme Court
• Parties: GEORGE HOWARD v. OLD DOMINION STEAMSHIP COMPANY.

83 N.C. 158

35 Am.Rep. 571

GEORGE HOWARD

v.OLD DOMINION STEAMSHIP COMPANY.

Supreme Court of North Carolina.

June Term, 1880.

CIVIL ACTION for Damages, tried at Spring Term, 1880, of EDGECOMBE Superior Court, before Gudger, J.

Judgment for defendant, appeal by plaintiff.

Messrs. Howard & Nash, for plaintiff .

Mr. W. B. Rodman, for defendant .

SMITH, C. J.

In January, 1878, the plaintiff put on board the company's steamer, a passenger and freight boat running on Tar river between Tarboro and Washington passing the town of Greenville, certain irons to be conveyed and delivered to William Whitehead at the last named place. There was an understanding between the defendant's agents in charge of their steamer and Whitehead that all freight transported on the boat for him should be landed at Clark's banks on the river, near which he resided, and notice given by three blasts from the steamer's whistle, and the articles were put ashore in accordance with this agreement. Whitehead a few days after, on being presented by a collecting agent of the company with bills for the goods and for freight, refused to pay either, saying he had ordered no such goods, should not take them nor pay for their transportation. The iron was then at Clark's landing and remained there a week longer when one Butts without authority from Whitehead or the plaintiff, called on the captain of the boat, paid the freight charges and took and carried away the goods. No information was given to the plaintiff of the disposition of the iron, nor did he know of the special arrangement with Whitehead as to the manner and place of delivery of goods intended for him. The action is for damages for the loss of the irons and the breach of the contract of carrying.

The only question to be decided is whether the variation in the place of delivery, under the special arrangement with the consignee, of freight intended for him is admissible against the owner and relieves the defendant from liability to the plaintiff. The irons did not belong to Whitehead, were not sent by his order, nor consigned by his consent, and can scarcely come within the provisions of an agreement applicable to his own property only. The contract of affreightment was not under his control, nor any deviation from its terms allowable without the plaintiff's assent. It was made with the plaintiff alone, and explicitly required the transportation and delivery at Greenville and not at any intermediate point. The defendant's agent knew of the consignee's refusal to receive the goods and to pay for them or the freight due, and makes no communication of the fact to the plaintiff, nor any effort to secure the safety of the goods, although the boat made trips on alternate days between the termini of its established route. The freight is at last received from a stranger and the goods, after remaining an entire week on the river bank unprotected, pass, without objection, into his possession, are taken away and...