Whittenton Mfg. Co. v. Memphis & O.R. Packet Co.

• Decision Date: 22 October 1884
• Citation: 21 F. 896
• Parties: WHITTENTON MANUF'G CO. v. MEMPHIS & OHIO RIVER PACKET CO. and others.
• Court: U.S. District Court — Western District of Tennessee

21 F. 896

WHITTENTON MANUF'G CO. v. MEMPHIS & OHIO RIVER PACKET CO. and others.

United States Circuit Court, W.D. Tennessee.

October 22, 1884

The plaintiff sued the defendants for damages to about 1,000 bales of cotton, alleged to have been caused by their negligence.The third count of the declaration to which the demurrer-- quoted in the opinion of the court--was taken is as follows:

'Third.And the plaintiff, the Whittenton Manufacturing Company, a corporation and a citizen, as aforesaid, complains of the defendants, the Memphis & Ohio River Packet Company and the Merchants' Cotton Press & Storage Company, corporation and citizen, as aforesaid, for that, on, to-wit, the various dates stated below, the plaintiff, through E Hobart & Co., their agents, purchased in Memphis Tennessee, of divers persons, the owners thereof, to-wit 1,002 bales of cotton, as follows, (giving dates and number of bales,) to be shipped to the plaintiff at Taunton, Massachusetts, and there delivered to it.At the dates of the said several purchases of the said cotton the same was in lots and in the custody of the several vendors of their warehousemen in the city of Memphis, and the several lots thereof, before removal, were examined, sampled, weighed, and classed, and ship-marked on behalf of plaintiff, and were found to be in good order and condition, and to correspond with the samples; and thereupon, by agreement, embracing each and all the transactions-- to be stated below-- between the plaintiff, through its agents, E. Hobart & Co., on the one side, and the said Mammoth Cotton Compress Company and the Union Cotton Compress Association and the defendant, the Memphis & Ohio River Packet Company, jointly and severally, on the other, each lot of said cotton, as received by the plaintiff from the vendors, was delivered in like good order and condition to the said Mammoth Cotton Compress Company and the Union Cotton Compress Association, or one of them, who received the same under the said agreement, to be by them, as was also agreed, as aforesaid, compressed and prepared for shipment for certain compensation to be paid, as was agreed, as aforesaid, and thereupon, as was also agreed, as aforesaid, through the defendant, the Memphis & Ohio River Packet Company, then to be safely transported from Memphis, Tennessee, to Taunton, Massachusetts, for certain other compensation, agreed, as aforesaid, to be paid.Each lot of the said cotton was delivered in pursuance of the agreement aforesaid, and when so delivered was receipted for as in good order and condition, and by the agreement first herein alleged, was to be kept by the said defendants, each and all, in like good order and condition during the compressing and preparation for shipment and during the transportation, and until the delivery at Taunton, Massachusetts, as aforesaid, and until delivery to the plaintiff.After the said 1,002 bales of cotton had been so received to be compressed and prepared for shipment, and had been receipted for as aforesaid, all which was done in pursuance of the agreement aforesaid, the defendant, the Memphis & Ohio River Packet Company, still pursuing the said agreement first made, delivered the plaintiff, through its agents, E. Hobart & Co., its three several bills of lading, whereby the receipt of the cotton was acknowledged, and it was stated that the said cotton was in good order and condition, and whereby it was agreed that for certain compensation stated it would transfer and deliver the said cotton in like good order and condition at Taunton, Massachusetts.The said bills of lading bear date, respectively, December 13, 1879, for 200 bales; December 19, 1879, for 500 bales; and December 29, 1879, for 302 bales.

'The defendants did not ship the said cotton promptly and speedily, as was their duty under the joint and several agreement, aforesaid, but neglected to do so, and, disregarding their contract and their duty, shipped the same about as follows, to-wit: On December 17, 1879, 174 bales by the steam-boat Cons. Miller; on December 20, 1879, 14 bales by the steam-boat Andy Baum; on December 23, 1879, 512 bales by the steam-boat Vint.Shinkle; on December 30, 1879, 302 bales by the steam-boat Virgie Lee.The defendants wholly failed to care for and properly protect the said cotton according to their joint and several agreement, aforesaid, but so negligently and carelessly conducted themselves with respect to it while it was in their possession under the agreement, aforesaid, and was being compressed and prepared for shipment, and while it was being shipped, and while it was being transported, that a large part of it, to-wit, 920 bales, by reason of such carelessness and negligence, were greatly damaged and injured, to-wit, by exposure to rain and snow, and by being brought in contact with mud and filth, so that when the same was delivered to the plaintiff at Taunton, Massachusetts, it was not in good order and condition, but had been greatly injured and damaged and depreciated in value, to-wit, to the amount of five thousand dollars.And afterwards, to-wit, on July 1, 1880, the said Mammoth Cotton Compress Company and the Union Cotton Compress Association became the Merchants' Cotton Press & Storage Company, one of the defendants here, which succeeded and became chargeable with and promised to pay all their debts and liabilities, respectively, all as hereinbefore alleged.And therefore the plaintiff sues the defendants for six thousand dollars damages.'

W. M. Randolph, for plaintiff.

H. C. Warinner, for defendants.

HAMMOND J.

When this case was before the court at a former day on a motion to replead, the motion was granted.Whittenton Manuf'g Co. v. Memphis & Ohio River Packet Co.19 F. 273.To the declaration then filed the defendants demurred on several grounds, all of which have been cured by amendment, except one.This is: 'Second, because said count does not make profert of the bill of lading alleged to have been executed by defendant. ' The law of Tennessee on the subject of 'profert' is peculiar.The Code enacts: 'Profert shall be required as heretofore, and a demurrer may be filed for want thereof. 'Tenn. Code, (T. & S.,)Sec. 2893.This means that the act of 1819, c. 27 Sec. 2, (Car. &Nich. 551,) was continued in force.It enacts: 'In all cases * * * the plaintiff shall be compelled to produce any instrument of writing, not under seal, within the power of the party to produce, upon which his, her, or their action is founded: * * * and, if the cause is pending in a court of record at the return term, make profert of the same in his, her, or their declaration, unless longer time is given.'

Now, at common law, profert being required only of sealed instruments 'under which the party claimed title,' it became settled under this act that its only effect was to put unsealed instruments upon which the 'action is founded' upon the same footing as profert of sealed instruments at common law.Tenn. Code, Sec. 2893, and notes.Gardner v. Henry, 5 Cold. 458; 3 Meigs, Dig. (2d Ed.) 2184.At common law a deed stated merely as an inducement in pleading did not require profert.1 Chit.Pl. 265; Gould, Pl. 414; Bouv.Dict. tit. 'Profert;'Banfield v. Leigh, 8 TermR. 573.It is not necessary, for example, in a suit upon a bond, to make profert of a deed for the performance of the covenants of which the bond was given.Sneed v. Wister, 8 Wheat. 690.Nor in a suit upon coupons is it necessary to make profert of the bond from which the coupons were taken.Nashville v. Bank, 1 Baxt. 402;Nashville v. InsuranceCo. 2 Baxt. 296.

Mr. Schouler, in his excellent work on 'Bailments,' says of the form of action against a carrier that it may be ex delicto or ex contractu at the election of the plaintiff.And, 'where the transaction and character of the loss require the plaintiff to show a contract, express or implied, with the carrier, to support his action, contract is the true remedy; otherwise the preferable form of action is tort. ' Schouler, Bailm 557;2 Add.Torts, Sec. 1415;2 Bac. Abr. tit.'Carriers,' B, 152.The action ex delicto is for a breach of duty founded on the custom of the realm, and it makes no difference that there is a contract by the carrier out of which the duty arises, unless there is something special in the contract upon which the plaintiff must rely for his action, in which case his suit necessarily must be ex contractu.In the ordinary contract the plaintiff has his choice as to the form of action he will use; and where the action is ex delicto the carrier may plead in defense any stipulations of a contract which has relieved him from the alleged breach of duty.Schouler, Bailm.575; Hutch.Carr. Sec. 748.

In New Jersey Nav. Co. v. Merchant's Bank, 6 How. 344, 381, the court say: 'The general liability of the carrier, independently of any special agreement, is familiar.He is chargeable as an insurer of the goods, and accountable for any damage or loss that may happen to them in the course of conveyance, unless arising from inevitable accident,' etc.Again, 'the burden of proof lies on the carrier, and nothing short of an express stipulation by parol or in writing should be permitted to discharge him from duties which the law has annexed to his employment.'

Mr Hutchinson, in his able work, also discusses this subject, and states the difficulties, even under the old practice, of determining the proper form of action to be brought, and, when brought, whether it be one or the other of the two forms allowable.He says that until Dale v. Hall, 1 Wils. 281, the form of action was ex delicto, and that case decided that, even where it is on the contract, the declaration is the same in effect as if it had been upon the...