Taylor v. Steamboat Robert Campbell

• Decision Date: 31 January 1855
• Citation: 20 Mo. 254
• Parties: TAYLOR, Defendant in Error, v. STEAMBOAT ROBERT CAMPBELL, Plaintiff in Error.
• Court: Missouri Supreme Court

20 Mo. 254

TAYLOR, Defendant in Error,

v.STEAMBOAT ROBERT CAMPBELL, Plaintiff in Error.

Supreme Court of Missouri.

January Term, 1855.

1. Under our act, (R. C. 1845,) a party may proceed against a boat by name, for the non-performance of a contract made by her master, upon a trip up the river, for the transportation of frieght upon the return trip.

2. One partner may sue for the breach of a contract made by him in his own name, although it was made for the benefit of the firm.

3. A. sued a boat for the non-performance of a contract made by her master by telegraph. It was proved that A. sent a dispatch to the boat, which was delivered to her officers. Held, a dispatch purporting to come from the master in reply might go to the jury upon proof that it was delivered in the telegraph office, without express proof that it was sent by the master, or with his consent.

4. It is no defence for a party, who is sued for the breach of a contract, to transport a specific number of articles, with which he did not offer to comply, that the plaintiff did not have as large a number as was specified ready for transportation.

5. A telegraphic dispatch from a boat on the Missouririver agreeing to transport freight, without naming the point of destination, may go to the jury as evidence of a contract to transport to St. Louis.

6. (Collier v. Swinney, 16 Mo. 484, affirmed.)

Error to Cooper Circuit Court.

This was an action against the steamboat Robert Campbell, for the non-performance of a contract of affreightment.

The petition stated that William Edds, master of the boat, on the 12th of December, 1852, agreed on behalf of the boat, to transport 400 hogs of the plaintiff, from Boonville, on the Missouri river, to St. Louis, at fair rates, and failed to comply with the contract.

The master answered on behalf of the boat denying that he made the contract set forth in the petition, alleging that the plaintiff did not have 400 hogs ready to be shipped on said boat in pursuance of the supposed contract, and further alleging that, on account of low water and ice, it was impossible for the boat to have complied with the contract, if any such had been made.

At the trial, the telegraph operator at Boonville, testified that the plaintiff delivered in his office the following dispatch, which was forwarded to Lexington, on the day of its date:

“Boonville, December 11, 1852.

To Robert Campbell:

Make room for 400 hogs at fair rates.

WM. TAYLOR.”

The operator at Lexington testified that the above dispatch was received at his office on the day of its date, and on the same day “delivered to the officers of the steamboat, Robert Campbell;” and that on the next day, the following dispatch was deposited in his office and forwarded to Boonville.

“Lexington, December 12.

Will take your hogs. Be down to-morrow morning.

CAPT. EDDS.”

Upon this testimony, the plaintiff was permitted to read the dispatches in evidence to the jury, notwithstanding an objection by the defendant.

John Taylor testified that he and his brother, the plaintiff, were in partnership; that, on the 11th of December. 1852, they had 370 hogs at Boonville, which they had purchased on joint account, and intended shipping to be sold on joint account as partnership property; that he had refused to join in a suit against the boat, but expected to share the expenses and benefits, if any resulted from the suit.

It was in evidence that the Robert Campbell passed Boonville, on her downward trip, on the 13th of December, 1852, without attempting to land, and that she was the last boat down during that month. There was evidence that, on account of ice in the river, it would have endangered the safety of the boat to have taken 370 hogs on board, and evidence to the contrary. The plaintiff introduced evidence to fix the amount of damage he had sustained by the failure of the boat to take the hogs.

The court left it to the jury to determine whether there was a contract, and directed them that the boat would not be excused for a failure to comply with her contract by the low water or ice.

The following instructions asked for the defendant were refused:

1. If the jury find from the evidence, that the plaintiff did not have 400 hogs ready to be shipped at Boonville as the boat passed down, they must find for the defendant.

2. If the hogs belonged to plaintiff and John Taylor jointly, and they were in partnership in the same, then the jury must find for defendant.

3. There is no evidence that the steamboat Robert Campbell, by and through the master thereof, made the contract set forth in the plaintiff's complaint, and the jury must therefore find for the defendant.

4. If it would have endangered the life of the boat to have taken the hogs at the time she passed down, on account of ice and the stage of water, then the boat was excused from taking the hogs at that time.

The plaintiff obtained a verdict for $600, and the defendant sued out this writ of error.

W. Adams, for plaintiff in error.

I. The telegraphic dispatch signed, “Capt. Edds,” was improperly read in evidence; 1. because no proof was given that Edds, the master, signed the same or authorized it to be sent; and 2. because the dispatch itself, or taken in connection with the other testimony, was no evidence of any contract, much less of the contract set forth in the complaint.

II. There was no proof whatever of a contract to transport hogs from Boonville to St. Louis.

III. There were only 370 hogs at Boonville, and they were partnership property, belonging to plaintiff and his brother jointly. If there was any contract, it was a joint contract, made with the plaintiff and his brother; and 370 hogs would not satisfy a contract for 400, nor could the suit be brought in the name of the plaintiff alone. (New Practice Act)

IV. Even if there had been a contract, as alleged, it was not such a contract as would authorize a suit against the boat. The fourth clause of the first section of the act concerning “boats and vessels” only applies to cases where an actual bailment has been made, and not to contracts made by the master or owner to receive and transport goods at a future time.

V. The obstruction of navigation by ice is an act of God, which excuses the non-performance of a contract of affreightment.

VI. The master of a boat, as such, has no power to bind even the owners by a contract for the future reception and transportation of freight; much less can he make a contract of that kind so as to create a lien on the boat under the statute. (Story on Agency, § 121; 20 Ohio, 54.)

J. W. Morrow and J. B. Gardenhire, for defendant in error.

I. John Taylor was not a necessary party. He was no party to the contract, and if he had joined, there would have been a variance between the contract set out and the proof. He was a dormant partner and was properly omitted. (2 Taunt. 326-7; 8 Serg. & Raw. 54; 6 Pick. 352; 3 Maine, 416; 3 Cow. 85.) He would not consent to be made a party, and therefore was properly omitted. (Story's Eq. Pl. § 167, note 3; 11 Vesey, 313.) A complete determination of the controversy can, for this reason, be had without him. (New Practice Act, art. 3, secs. 7 and 10; 19 Vesey, 457.) The objection, not being taken by answer, is waived. (New Practice Act, art. 6, sec. 6.)

II. There were facts and circumstances in evidence tending to prove making of the contract set out in the petition, and they were properly submitted to the jury. (Cow. & Hill's notes, part 2, p. 1310 and authorities cited.) The transmission of messages by telegraph is a new and great element in the transaction of commercial business. Contracts are made every day for large amounts through its means; and if the strict rules of evidence are to be applied to such contracts, its utility will be greatly diminished.

III. As the defendant, by his own contract, assumed the obligation to take the hogs, the act of God will not excuse him for a failure, because he might have made the proper exceptions, if he had chosen. (Story on Contracts, § 668; 16 Mo. 467.)

SCOTT, Judge, delivered the opinion of the court.

This was an action brought by the defendant in error...