Ringgold v. Haven

• Decision Date: 01 June 1850
• Court: California Supreme Court
• Parties: RINGGOLD v. HAVEN & LIVINGSTON.

1 Cal. 108

RINGGOLD v. HAVEN & LIVINGSTON.

Supreme Court of the State of California

June Term, 1850

June 1, 1850

APPEAL from the Court of First Instance of the District of San Francisco. The facts are fully stated in the opinion of the Court.

McDougall (Attorney-General), for Plaintiff

E. Temple Emmet, for Defendants.

By the Court, BENNETT, J. Appeal from judgment of the Court of First Instance for the District of San Franiscco.

The action was brought against the defendants as common carriers for not safely transporting certain goods of the plaintiff from the port of New York to the port of San Francisco. The complaint was in the ordinary form of a common law declaration in case against a common carrier, and the plea was the general issue. At the trial the plaintiff himself was sworn as a witness by the consent of the defendants, and testified that sometime in the year 1849 he consulted Haven, one of the defendants, about the shipment of goods from New York to San Francisco; who informed him that goods shipped at the former port would arrive at the latter, in about sixty days after their shipment, and, at the same time gave him a card, whereon were printed the names of Livingston & Wells. The plaintiff, thereupon, wrote to New York directing his agent to send the goods in controversy in this suit to San Francisco by Livingston & Wells, to whom Haven had referred him. The freight for the transportation was paid to the defendants, but whether before shipment or after arrival of the goods, does not appear. The invoice price of the goods was two hundred and nineteen dollars and ninety-four cents, and their market value at San Francisco two thousand seven hundred dollars. On their arrival they were found to be much damaged from having been long immersed in water. Upon proof of these facts, the plaintiff rested his case, and the defendants moved for a nonsuit. The Court, however held, that the defendants, having made a contract with the plaintiff, without disclosing their principal, or giving notice that they were acting as agents, were liable in this action, and refused the nonsuit.

The defendants then gave in evidence a bill of lading, which was handed to them by the plaintiff, on his receiving from them the goods in question. The bill of lading was in the ordinary form, and was signed by "Livingston, Wells & Co." and by it, the articles therein mentioned were consigned to the plaintiff, to the "care of Haven & Livingston," San Francisco. The defendants then claimed, that the evidence furnished by the bill of lading was sufficient in law to bar the action against them, but the Court held that a contract existed between the plaintiff and the defendants for the transportation of the goods, and that the defendants were liable in this action upon that contract. The defendants then contended that the measure of damages should be the price of the goods at the place of shipment, added to the expenses which the plaintiff had incurred, but the Court was of opinion that it would be more equitable to add the price at the place of shipment to the expenses of the plaintiff and the value of the articles at San Francisco, and divide the sum total by two. The defendants objected to this method of arriving at the amount of damages, but the Court rendered judgment for the sum resulting from the equitable estimate above stated. The cause was tried without a jury; and the paper upon which the testimony and proceedings at the trial appear in the record, is termed upon its face a bill of exceptions.

Under these proceedings, it is contended in this Court by the counsel for the appellants: 1st, That the Court below erred in not granting the nonsuit prayed for; 2d, That the bill of lading showed that the contract for the transportation of the articles mentioned therein was a contract between the plaintiff on the one side, and Livingston, Wells & Co. on the other, and not a contract to which the defendants were parties; 3d, That, even though a contract for the transportation of the goods in question between the plaintiff and the defendants were proved, there was yet no evidence to sustain the averment in the complaint that the defendants were common carriers, and that this action could not be maintained without establishing that position; and 4th, That the Court erred in estimating the damages. The counsel for the respondent contends: 1st, That the paper containing the testimony and proceedings at the trial, must be regarded strictly as a bill of exceptions, and that it does not appear therefrom that any exception was taken to the ruling of the Court; 2d, That the Court below could not direct a compulsory nonsuit to be entered against the plaintiff; 3d, That the evidence tended or conduced to prove all the facts necessary to be established in order to warrant the judgment, and that a jury would have been, and the Court sitting as a jury was, justified in finding such facts from the evidence returned; and 4th, That this Court is bound to presume, in favor of the proceedings, that there was evidence given, though not returned, sufficient to warrant the finding of the Court.

In considering these various points, it is proper, in the outset, to direct attention to the position of the counsel for the respondent, that the portion of the record, which purports to set forth the testimony and proceedings at the trial, is a bill of exceptions, and should be subjected to the rigorous rules of the common law practice as applied to bills of exceptions. If this position be tenable, we cannot, then, upon this appeal, review the decision of the Court denying a nonsuit, for it does not ap- pear that the defendants took a proper exception, on this ground, at the very time of the trial.

The judgment appealed from was rendered after the Act of February 28th, 1850, took effect. From that Act we derive all the authority we have, to entertain an appeal, in any case, from a judgment of the Court of First Instance, and it follows, therefore, that the only question to be determined, upon the point under consideration, is whether the proceedings upon this appeal are conformable to that Act. This statute enjoins upon us to look at the substance of the proceedings at the trial, rather than to require a strict compliance with the technicalities and forms in spreading those proceedings upon the record. In no portion of it, is a bill of exceptions spoken of, or alluded to, or in any way recognized. This omission is, we presume, not accidental. It is owing, no doubt, to the intention of the Legislature to obviate the nice questions of practice, which frequently arise upon bills of exceptions, and which, in the condition of legal procedure then prevalent in our Courts, might become the instruments of enabling a party to evade the real merits of an appeal. By section 18 of the statute above referred to, it is enacted, that "when an appeal shall be taken from any judgment or order hereafter rendered or made, on the ground of error in the proceedings at the trial, a case shall be prepared by the appellant, containing such portion of the testimony, decisions of the Court and other proceedings, as shall be necessary to present clearly to the Appellate Court the alleged ground of error." The sections immediately succeeding, point out the mode in which the case shall be served, amended and settled, and section 22 requires the Clerk to return such case upon appeal. The section last cited also declares, that if no case shall have been made by the parties, it shall be the duty of the Court below to make a return of the testimony and proceedings at the trial. The statute provides these two modes, and these alone, for bringing before the Appellate Court, for review, the errors which may have occurred in the course of the trial. Whether, therefore, the portion ox the record referred to, be a case made by the parties, or a statement of the proceed- ings drawn up and returned by the Court—whether it be denominated a bill of exceptions, in the terms of the common law, or an authenticated copy of the record, in the language of the civil law—we are to look at the substance of its contents, and to disregard its imperfections in form; and viewing it in this manner, we see that the defendants moved for a nonsuit, and that the Court denied the motion—that after their evidence was closed, they insisted that it was sufficient to bar the action, and that the Court decided otherwise. It is a matter of no account, whether they excepted to the ruling of the Court or not; or if they did except, whether the exception appears upon the record.

We are now ready to consider the questions: 1st, Had the Court the legal right to order the plaintiff to be nonsuited without his consent? and 2d, If so, did the Court err in refusing to grant the motion for a nonsuit in this case?

First, As to the right of the Court to direct a compulsory nonsuit. Upon this point, we are met by a contrariety of authorities and a diversity of argument. In some of the States, the affirmative, in others the negative, of the proposition is asserted in theory and maintained in practice. In some, it is held, that the Court has no...