Mills v. Pearson.

was the only person possessed of any ownership or interest in the claim sued on, so that, upon a recovery and subsequent payment, all rights of action in respect to this demand would be barred as against the defendant.

Was the evidence in support of the plaintiff's right of action of this nature? Was it such as would be an effectual bar against any subsequent claim of Mr. Steel?

There was no evidence that the firm had ever been dissolved, nor that this claim ever belonged to the witness Sharp individually, of such a conclusive character as would prevent the copartner Steel maintaining an action similar to this. No act of Steel was shown which would conclude him from denying either of these propositions, or would vest his interest in the assets of the firm in his copartner Sharp.

To permit the plaintiff to recover upon such evidence, would be a violation of the familiar rule which requires all the parties living, and having the legal interest in a joint contract, to join in an action brought upon it,—a rule not only just in itself, but which should be adhered to, for the reason that if several parties were allowed to bring actions for one and the same cause, the court would be in doubt for which to give judgment. 1 Chitty on Pleading, 5, 6; Collyer on Partnership, § 649; Dob v. Halsey, 16 John. 34. Whether, if Sharp had, subsequent to the dissolution, signed the name of the firm to a transfer of this claim, the action might have been maintained in the name of the assignee, it is not necessary here to determine; as the assignment offered is not so signed, nor does it purport to sell or transfer anything beyond the individual "right, title, and interest" of Sharp to the debt in question.

The evidence of the right of the plaintiff to sue alone was not sufficient, and the defendant's motion at the trial to dismiss the complaint on the ground of the non-joinder of William Steel, should have been granted.

This conclusion renders it unnecessary to examine the remaining ground of appeal.

Judgment reversed.

Place v. Union Express Co.

CHARLES PLACE, JR., v. THE UNION EXPRESS COMPANY.

Express companies who receive and agree to transport goods or packages from place to place for hire, in the ordinary and approved means of conveyance, are common carriers, although they are not owners of, nor interested in, the conveyances by which the goods are transported,—disapproving Hersfield v. Adams, 19 Barb. 577. A forwarder is one who, for a compensation, takes charge of goods entrusted or directed to him, and forwards them; that is, puts them on the way to their place of destination by the ordinary and usual means of conveyance, or according to the instructions he receives. His compensation is limited to his care and trouble, and the charges paid by him in receiving, keeping, and duly forwarding; and, when he has placed the goods in the course of transit by the proper conveyance, his duty is at an end. He has no interest in, and receives no part of the compensation paid for the carriage and due delivery of the goods.

A common carrier is one who, for a reward, undertakes to carry goods for persons generally, as a public employment. It is the receipt of, or the right to, the freight or charge for the carriage of goods, together with the public nature of their employment, that constitutes them common carriers.

The U. Express Co. received certain boxes of fruit, which they agreed, by a receipt in writing, to deliver at the depot at M. within twelve days, on payment of freight, stipulating against accidents and casualties beyond their control, and particularly that their guaranty of special dispatch should not cover cases of unavoidable or extraordinary casualty. They also stipulated that fruit should be at the owner's risk of transportation, loading, and unloading; that they would not be liable for injury to any articles of freight, during the course of transportation, occasioned by the weather, or accidental delays, or natural tendency to decay; that they would pay five cents per 100 pounds for each day the goods were delayed beyond contract time, and that all claims for damages, &c., should be presented for settlement at their office in New York. They shipped the fruit so received to M., the place of its destination, via the N. Y. C. RR. and the G. W. RR., with which roads alone they had any arrangements for transportation. For nearly two months prior to their taking the fruit in question, the G. W. RR. Co. had been unable to receive freight as fast as the N. Y. C. RR. delivered it, and, in consequence, there was a great accumulation of it, and a delay of at least ten days, on the average, in the transportation. The fruit in question was, in consequence, delayed over twenty days upon the route, and was nearly ruined by decay when it reached M. There was another road by which the fruit might have been sent, but the U. Express Co. had no arrangements for transportation with that road. In an action against the U. Express Co. to recover damages for the injury to the fruit, held,

I. That the defendants' agreement to deliver the freight received, according to the

Place v. Union Express Co.

conditions of their tariff, classification, and rules, rendered them liable as common carriers for the safe carriage and delivery of the goods, and subjected them to the liability incident to that employment, except so far as it was limited by express stipulation.

II. That proof by the consignee that he did not receive the goods within the time specified, coupled with evidence that a part of them did not arrive, was sufficient evidence of the failure of the defendants to deliver at the depot at M., to throw on them the onus of showing when the fruit did arrive at the depot. It was a matter peculiarly within their knowledge, and slight evidence on the part of the plaintiff was therefore sufficient to throw on them the burden of proof.

III. That the defendants were liable for the decay of the fruit. The clause providing that they should not be liable for natural decay, must be understood as applying to decay to which the fruit might be subject during the prescribed time within which the defendants undertook to deliver it at M., not to such as was occasioned by the defendants' delay.

IV. That the clause providing that the defendants should pay five cents per 100 pounds for every day the goods were delayed beyond the time fixed by the contract for delivery, did not limit the liability of the defendants thereto. They were liable in that amount whether the plaintiff suffered any loss by the delay or not, and were also liable for any actual damage to the fruit occasioned by such delay. That clause in the agreement applied only to cases where the property was delivered uninjured, but after the contract time.

V. That it was not necessary for the plaintiff, as a condition precedent to the defendants' liability, to present the claim for settlement to them, at their office in New York. In order to avail themselves of any defence arising under the clause of the contract providing for such demand, it was necessary for them to plead a readiness to pay the amount of damages at such place, and follow it up by a tender of the amount in court.

VI. That the facts shown as being the cause of the delay did not prove that it waз the result of an accident or casualty beyond the defendants' control. It was their duty to have known the conditions and possibilities of transportation upon the routes over which they were accustomed to transport their goods, before entering into a contract to deliver within a specified number of days; especially so when the cause of the detention was a disarrangement and want of facilities upon one of the roads not of a sudden development, or of a temporary duration, but one that had existed for some time prior to their making the contract. Where there is a special contract to carry within a prescribed time, the carrier is held to a rigid performance of it, and is not excused even by inevitable necessity, unless he has provided against it by positive stipulation.

APPEAL by defendants from a judgment of the Marine Court at general term. The action was brought to recover damages for the

Place v. Union Express Co.

non-delivery of fifty boxes of fruit entrusted to the defendants at the city of New York, to be transported to Milwaukee. Fifty boxes were delivered to the defendants for transportation on the 9th of April, 1856, and the other hundred boxes were delivered to them on the 26th of April, 1856. By the receipts, given by the defendants at the time, they contracted to transport the fruit and deliver it at the depot of the railroad in Milwaukee within twelve days from the date of the receipts respectively, Sundays, accidents, and casualties beyond their control excepted; or pay five cents per 100 lbs. per day for each day the goods were delayed beyond contract time; all claims for damages to be presented at the New York office for settlement. The receipts further provided that the defendants would not be liable for injury to any articles of freight during the course of transportation occasioned by the weather, or accidental delays, or natural tendency to decay; nor would their guaranty of special dispatch cover cases of unavoidable or extraordinary casualty; nor would they hold themselves liable, as forwarders, for such articles after their arrival at the place of their destination; and that certain articles specified, including fruit, would only be taken at the owner's risk of fracture or injury during the course of transportation, loading, and unloading, unless specially agreed to the contrary.

The goods were not delivered within the prescribed time. Six boxes of the first fifty were never delivered. The remaining forty four boxes were not received by the consiguee until the 8th and 9th of May-twenty-nine days from their receipt by the company. The fruit was then decayed, and nearly ruined. The second lot arrived on the 17th and 21st of May, from twenty-one to twenty. five days after their receipt, and was also badly spoiled. The facts constituting the cause of the detention are fully stated in the opinion of the court. Judgment was rendered for the plaintiff for $475.00 damages, being the loss in the value of the fruit, and the five cents per day per 100 pounds named in the contract. This judgment was affirmed at the general term of the Marine Court, and the defendants appealed.

Place v. Union Express Co.

Luther R. Marsh, for the appellants.

I. The rights of the parties are to be adjudged according to the written contracts. The defendants had a right to enter into them, and to define or restrict their liability.

Common carriers, even, may do this. The Mer. Mut. Ins. Co. v. Chase, 1 E. D. Smith's Rep. 115; Davidson v. Graham—Ohio case, Am. Law Reg., vol. 3, No. 5, p. 291; Dorr v. N. J. S. Navigation Co., 1 Kernan R. 485. But expressmen or forwarders, like these defendants, are not within such restrictions as yet exist against common carriers. 12 J. R. 232; Hersfield v. Adams, 19 Barb. R. 577. It was admitted, in this case, that the defendants do not own, and are not interested in, the lines or routes by which the freight they carry is transported, nor in the vehicles by which the same is carried.

II. The defendants, according to their contract, are not liable at all to the plaintiff. 1. The contract is "to deliver at the depot of the RR. in Milwaukee." No breach of this contract is shown. The plaintiff has not shown that the goods did not all arrive at the depot within the contract time. The consignee is the only one who testified on this subject, and he only speaks of the time he received the fruit, or of the time it arrived at his store or possession. He does not show that he called for it at the depot-the place of delivery—at the expiration of the contract time, or at any time after, till the time he received it. "There must be some evidence" (even against a common carrier) "of the non-delivery according to the requirements of the bill of lading." 1 Car. & P. 110; 11 E Com. Law. R. 333; 5 Adol. & Ell. 543; 2 Greenleaf's Ev., p. 213; Angell on Carriers, 470. 2. The defendants are not liable for any injury by decay of the fruit. The contract expressly makes the conditions and the rules appended to it a part thereof. The 3d rule and condition is, that the company will not hold itself liable at all for injury to any article of freight, during the course of transportation, occasioned by natural tendency to decay. And the 4th rule and condition is, that "fruit," among certain other enumerated articles, "will only be taken at the owner's risk of injury during the course of transportation, loading and