Steamboat Virginia v. Kraft

• Decision Date: 31 March 1857
• Parties: STEAMBOAT VIRGINIA, Respondent, v. KRAFT et al., Appellants.
• Court: Missouri Supreme Court

25 Mo. 76

STEAMBOAT VIRGINIA, Respondent,

v.KRAFT et al., Appellants.

Supreme Court of Missouri.

March Term, 1857.

1. The custom or usage authorizing those engaged in the transportation of merchandise to advance to forwarding agents the existing charges thereon, and to hold the consignee and owners liable therefor, does not extend to or cover advances made on demands upon the consignees or owners wholly foreign to, and disconnected with, any cost or charge for transportation.

Appeal from St. Louis Law Commissioner's Court.

One Whiting, acting as a forwarding merchant in New Orleans, shipped for St. Louis, per the steamboat Virginia, five cases of scythes. When said goods were received on board of said steamboat, the said Whiting demanded, and the clerk of said steamboat paid to said Whiting, the sum of $153.42. Said sum was entered as “charges” in the bill of lading. Of said sum of $153.42, a portion-- $147.92--formed no part of the charges paid by or due Whiting on account of the said merchandise shipped on the Virginia; it was a charge made by Whiting on account of former advances, traveling expenses, lawyer's charges for collecting, etc. The merchandise shipped by said Whiting, as forwarding agent, was delivered to E. F. Kraft & Co., the owners thereof, at St. Louis, who refused to pay to said steamboat the said item of $147.92, alleging that they were not liable therefor, but admitting their liability to the extent of the remaining advances. This suit was brought in behalf of said steamboat to recover said sum of $153.42.

The court, at the instance of the plaintiff, gave the following instructions: “1. The custom or usage of a particular trade fixes the liability of parties, unless there is an agreement to waive the ordinary custom or usage of the trade in which the contract is made. 2. If the jury believe from the evidence that it is customary for boats running between New Orleans and St. Louis to receive goods in New Orleans and pay charges thereon, without knowing the consideration for these charges, and that the plaintiff in this case received the defendants' goods in New Orleans, and paid to the defendants' agent there the sum of $153.42 as charges on the same, without knowing what those charges were for, then they are entitled to recover the amount paid, although the jury may believe that the whole amount of said charges were not properly chargeable on that particular lot of goods for previous freight, or the ordinary charges incurred in the transportation of the same. 3. The acts of the defendants' agent in New Orleans are binding upon them, and they are liable for money received by him for and on their account, notwithstanding the same may have been improperly charged by the said agent, unless the plaintiff knew the charges were improper, and the burden of proving that fact lies on the defendants. 4. The defendants had their choice to receive, or to refuse to receive, the goods on their arrival here; but by receiving the goods without any objection to the charges on the same, they admitted their liability, and are now bound to pay the full amount of said charges, whether the same were properly charged or not by their agent in New Orleans, unless the jury find from the evidence that the plaintiffs knew, before they paid said charges, that they were improper, and were not the ordinary and usual charges incurred in the transportation of the goods in question. 5. If the jury believe that Abijah Whiting was the shipping agent of the defendants in New Orleans, and that acting in that capacity for the defendants he procured the said plaintiff to pay the sum of $153.42 as charges on the goods of the said defendants, and that the said defendants received the goods, knowing that said charge had been paid by the plaintiff, then they are liable therefor, and the jury will find for the plaintiff.”

The court refused to give the following instructions asked by defendants: “1. The jury are instructed that the plaintiff is entitled to recover in this action of defendants only such sums as they find were paid out on account of freight and charges on the said five cases of scythes named in the bill of lading. 2. If the jury believe that the sum of $147.92, or any other sum paid by plaintiff to Whiting, was collected by said Whiting on account of other transactions than those connected with the shipment and charges on said scythes, then they will not find for plaintiff for such amount.”

The jury returned a verdict for plaintiff for the whole amount sued for.

Biddlecome, for appellant.

I. Whiting was in no...