#### The Steamboat “War Eagle,” Plaintiff in Error, *vs.*Alonzo Nutting, Defendant in Error.

A complaint set forth fully all the facts necessary to constitute a cause of action upon a claim against a steamboat, (under Chap. 86, Rev. Stat.) and also a special contract made with the Captain of the boat, in relation to the same cause of action.

*Held.*that if, upon the trial, the evidence was sufficient to prove the facts set forth in the complaint, constituting a cause of action, the allegation as to the special contract will he deemed surplusage; and no proof of such special contract will he necessary to maintain the action.

Alonzo Nutting, the Plaintiff below, commenced this action in the District Court for Bamsey County, to recover the value of certain baggage alleged to have been lost by the Steamboat “War Eagle.” The complaint set forth facts sufficient to con.stitute a cause of action under Chapter 86 of the Bevised *257Statutes, (concerning proceedings for the collection of demands against boats and vessels,) and in addition, set forth a *special*contract made with the Captain of the boat at Galena, for the delivery of the trunk at Saint Paul.

A Jury trial was waived by the parties, and the cause submitted to the Court. ■

The District Court found for the Plaintiff, and judgment was entered accordingly. The cause comes to this Court by "Writ of Error.

The following are the points and authorities relied upon by the Plaintiff in Error:

*First.*That the Court erred in finding for the Plaintiff.

1. Because the complaint set up an express contract between the parties to carry the said trunk or baggage and there was no evidence of such contract.

2. Because no material issue was found by the evidence.

3. Because the facts found by the Court were insufficient in lav to warrant a decision and judgment in favor of the Plaintiff.

4. Because the facts found by the Court were irrelavent, insufficient and at variance with the pleadings.

*Second.*That the Court erred in allowing the Plaintiff to recover the enhanced value of the articles at Saint Paul.

AUTHORITIES.

*Ymi Smtvoord’s Pleading,*146,147,151,154 *and*160; *Glenny vs. Hitching’s,*4 *How. P. B.,*88; *BaTcer vs. Bussell,*11 *Barb.,*307; *Scmnders’ PI. and Ev.,*2 *Am. Ed.,*1 *Yol.,*379; *Bevised Statutes, Sec. 2,p.*337; 1 *MonelVsPr.,*380 ; *Story on Gontr.,*6 ; *Bees vs. Limes,*8 *Gam. md Payne,*126 ; *Sehoay vs. Fogg,*5 *Mees amd Welsh.,*83.

The following are the points which were made upon the argument of the Defendant in Error in support of the judgment of the Court below.

*First.*There is no error in the record or proceedings of the Court below.

*Second.*The complaint does not set forth a *special*contract; *258but only tbe ordinary *implied*contract of a common carrier of passengers.

*Third.*The evidence fully supports tbe complaint, and tbis Court will not presume the want of evidence to support any issue, when they have not tbe whole evidence before them.

*Fourth.*Tbe answer admits that tbe boat was used and employed in tbe transportation of passengers, &c., for hire; that tbe Defendant in Error came a passenger upon her from Galena to Saint Paul, and paid bis fare. Tbe proof shows clearly tbe delivery of tbe baggage on board tbe boat at Galena, tbe subsequent demand and failure to deliver at Saint Paul, tbe articles composing tbe baggage and tbe value thereof; thus mating a perfect case for tbe Plaintiff below.

*Fifth.*Tbe violin and bow were properly held as baggage; they were articles of personal convenience to tbe Defendant in Error, not of merchandize, nor such as could subject tbe carrier to unsuual *hazard.*— Pardee *vs. Brew,*25 *Wen.,*459; *PLamki/ns vs. Hoffman,*6 *Hill.,*586; *Woods vs. Bevier,*13 *III.,*746; *Jones vs. Yoorhees,*10 *Ohio,*145.

*Sixth.*Tbe rule adopted by tbe Court below in estimating tbe damages was clearly *correct.*— Sedgewiek *on Measure of Bamages,*(2 *Ed.) Chap.*13.

*Seventh.*None of tbe decisions which appeared from tbe *Jmdmg*of bis Honor, Judge Sherburne, to have been made upon the trial in tbe Court below, can be alleged for error in tbis Court. They form no part of tbe record proper, and could be reviewed in this Court only upon abill of exceptions settled, &c., according to the practice of tbe Court, and attached to and certified with tbe record to tbis Court. Tbe case is here as upon complaint and answer, a general verdict for tbe Plaintiff below, and judgment *thereupon.*— Pule 9 *of this Court',. Pero. Stat.,p.*416; *Hill vs. Stocking,*6 *Hill.,*289; *2d Burr. Pr., {2d Ed.,)*159.

Note. — Vide authorities cited upon points of Plaintiff in Error. *Vcm Samtooord’s PI.,*146,147,151,154,160; 4 *How~ Pr. P.,*'98; 11 *Barb., S. C. P.,*307.

Hollín shear & Becker, Counsel for Plaintiff in Error.

Brisbin & Bigelow, Counsel for Defendant in Error.

*259*By the Oo'u/rt*

Welsh, C. J.

This case comes before ns by a Writ of Error to tbe District Court for tbe second District, County of Ramsey.

Tbe Defendant in Error brought an action for tbe recovery of damages for tbe loss of baggage, while be was a passenger on board tbe steamboat War Eagle, Plaintiff in Error, from Galena to Saint Paul.

The complaint sets out that tbe boat was used in navigating tbe waters of tbe Territory of Minnesota, that it was used and employed in carrying passenger’s with their baggage, and goods, wares and merchandise upon tbe waters of tbe Eever and tbe Mississippi Rivers, for hire and reward, from tbe city of Galena, in tbe State of Illinois, to Saint Paul, in tbe Territory of Minnesota. Tbe complaint then goes on and alleges that one D. S. Hams was Captain and Master of said boat; that be, tbe said Harris, in consideration that tbe said Nutting would take passage upon tbe said steamboat and become a passenger thereon to be carried and conveyed thereon with bis baggage from tbe city of Galena to tbe city of Saint Paul, for a reasonable hh*e and'reward to be paid by tbe said Plaintiff to tbe said Master, undertook and promised tbe Plaintiff to carry and convey him, tbe said Plaintiff, with bis baggage, upon tbe said steamboat from tbe city of Galena to tbe city of Saint Paul, and to deliver to him, tbe said Plaintiff, bis said baggage in safety and good order, at Saint Paul, upon tbe arrival of tbe said boat at Saint Paul; and that confiding in said undertaking and promise, be took passage with his baggage, which tbe captain failed to deliver, &c,

Tbe answer traverses either directly or by averring want of knowledge or information sufficient to form a belief, all of tbe allegations of tbe complaint, except that said Harris was Master, that she was used in carrying passengers and goods for hire, and on tbe Mississippi, &c. A jury trial was waived, and tbe case was tried by tbe Court. A judgment was rendered for tbe Plaintiff for $170 and costs.

Prom tbe decision of tbe Judge who tried tbe case, it appears that be found tbe facts true as stated in tbe complaint. It might, perhaps, be urged that this finding was definitive of tbe case, and did tbe finding stand alone, it would be so; but *260it is evident that the Judge intended to be understood that the Plaintiff had proven facts entitling him to recover, rather than that he had proved all the allegations of his complaint. The decision details the evidence given, and from this it appears by the testimony of the Plaintiff that the Plaintiff called upon the Oaptain of the boat at Galena and requested a ticket for a passage to Saint Paul; that the Oaptain directed him to the Clerk of the boat, to whom he applied and of whom he purchased the ticket, for which he paid $7 00. That he gave his trunk in charge of the 'porter of the boat. That the Plaintiff went on board of the boat at Galena and came on the boat to Saint Paul: that he has repeatedly demanded his trunk of the officers of said boat, and they allege, it can not be found and have not delivered it to him, and that he has not received it. The witness also testifies as to the value of the baggage lost.

Various questions were raised on the trial, but it is unnecessary to notice them, as, upon [the argument [it was admitted that the only question was, whether, under the pleadings the testimony warranted the judgment rendered.

The Plaintiff in Error contends that Plaintiff declares upon a special contract, and that the foregoing testimony does not support the complaint. The criticisms of counsel upon the complaint are, in the main, correct. Under our Statute, the' pleadings must contain a statement of facts alone; and when the pleadings are sworn to as in this case, the impropriety, to use a mild term, of swearing to a legal fiction is manifest.

But the question is whether the Plaintiff has proved enough to warrant a recovery ? He certainly has not proved all of the allegations set out in the complaint. He has, however, proved every allegation except the promise and undertaking of the Oaptain of the boat. He has proved enough to entitle him to recover; *Provided,*the complaint had omitted the special undertaking of the Oaptain. The complaint avers all that is necessary to entitle the Plaintiff to a recovery, and something more.

Now if the Plaintiff has proved all that is essential in the complaint, ought a failure to prove immaterial averments to preclude a recovery *%*Manifestly not. In this case all the averments in relation to the special undertaking of the master, *261may be rejected as surplusage, and a failure to prove such matters should not prevent a recovery, if the facts proved sustain all the material parts of the complaint.

The judgment of the District Court is therefore affirmed.