#### David C. M'Clure *v.*Edward Richardson.

Defendant was the owner of a boat, in which he was accustomed to carry his *own*cotton to Charleston; and occasionally, when he had not a load of his own, to taire for his neighbors, they paying freight for the same. One *Howzer*was the master or *patroon*of the boat, and the *general*habit was for those who wished to send their cotton by the defendant’s boat, to apply to the defendant *himself.*On this occasion, the patroon had been told to take Col. Goodwin’s and Mr. Dallas’s cotton, which he had done, when the plaintiff applied to Howzer, in the absence of the defendant, to take on board ten bales of his cotton, asking him if it was necessary to apply to the defendant himself, to which *Howzer*replied, he thought not and received the cotton: Held, that under the circumstances, the defendant was bound by the act of *Howzer,*as being within the general scope of the authority conferred upon him by placing him in the situation of master of the boat, and that the defendant was consequently chargeable as a common carrier, for any loss of, or damage to plaintiff’s cotton.

*Before BUTLER, J., at Charleston, January Term,*1839.

The report of his Honor, the presiding Judge, is as follows: — . “ This was a special action on the case, to make the defendant liable for cotton lost on board of his boat by fire. The testimony is in writing and can be referred to. One Howzer was the patroon of the boat, and took the cotton on board under the following circumstances. He was employed by defendant to take charge of his boat as patroon, and in the early part of the season of 1835, perhaps in October, he had made one trip on the Santee to Charleston, with defendant’s own cotton: the habit of the defendant being to use his own boat to carry his own cotton, and occasionally, when *216he had not a load of his own, to take *his*neighbors. On the trip when this cotton was lost, the patroon had been told to take colonel Goodwin’s and Mr. Dallas’ cotton; he took in Goodwin’s at defendant’s own landing and Dallas’ at Dallas’ landing, some distance below, in all 110 bales. At this place the plaintiff, M’Clure, applied to the patroon to take onboard 10 bales of his cotton — asking the witness if it was necessary to apply to colonel Richardson himself; the witness replied he supposed it was unnecessary — that colonel Richardson was at his summer place and could not be applied to in time for the boat to go off. The cotton, 10 bales, were taken on board after the boat had passed through the rocky part of the river. At night when the boat stopped, fire was communicated to the cotton by one of the hands striking up a fire on board, contrary to orders ; four bales were entirely consumed, two very much injured, and four delivered in Charleston. The cotton of the two that were injured, was put on board of another boat, or perhaps the same boat, and some time afterwards was entirely lost in a gale. The grounds of defence were, that defendant was not liable for the loss, because the patroon was not his agent to take freight, and had no authority to take the cotton without the express orders of his employer. This question depended somewhat on the course of dealing and habits of defendant. Several witnesses were examined, who said that they had often shipped their cotton on defendant’s boat, and had paid the usual rates of freight. One witness said he had put cotton on board the defendant’s boat in his absence, by making arrangements with his overseer, or patroon of the boat. The general habit was to apply to colonel Richardson himself. Howzer, the patroon on this boat, said he never had before taken cotton without Richardson’s consent, but that he thought he was at liberty to do so under the circumstances. In my charge to the jury, I said that masters of marine vessels were regarded as the agents of the owners, to take freight, and that the patroons of boats on our inland rivers were generally in the habit of signing bills of lading. This being the general understanding, I thought the patroon should be regarded as a competent agent, unless the owner had given some public instructions to the contrary, or there were some collusive contract with the patroon by the shipper, *217contrary to the known habits of the owner. That if Howzer were a competent agent to take on board of the boat the cotton in question, which, under the circumstances I thought he was, then the defendant was clearly liable for the loss of the four bales of cotton which were entirely destroyed, he not having brought himself within any of the exceptions that would exempt a common carrier from liability, it having been proved that the plaintiff was to pay for the freight of his cotton. With regard to the two bales that were injured, and lost in a gale, I thought he should be held liable for them too, as the injury that they received in the first instance, resulted from carelessness, unless it could be shown that the ultimate accident, the act of God, would have destroyed the cotton, in spite of the delay occasioned by the fire. In .other words, the defendant should be held liable for the free and natural consequences of his carelessness. It is probable, but for the fire, the cotton would have gone in safety to Charleston.”

The jury found for the plaintiff the amount of his demand.

Defendant appealed and now moves for' a new trial on the following grounds : 1. It is respectfully insisted, his Honor the presiding judge, erred in his charge to the jury, that by the general law, the patroon of a boat navigating the inland waters of the State, has authority to make a contract for carrying goods, and to charge his employer by such contract. 2. Because any inference of such authority derivable from the custom of the river, or the consent of the owner of this boat, having been negatived by all the witnesses in this case, the verdict was contrary to law and evidence.

Curia, per Butler, J.

Whether the defendant, Richardson, would have consented that the plaintiff should put his cotton on board of his boat if he had been present, is a matter of conjecture. It is certain his agent, believing in his authority to do so, did take the cotton. The patroon who was in charge of the boat, represented himself as competent to lake in freight, and had not the plaintiff every reason to believe that the agent was acting within the scope of his authority ? The boat had on board Goodwin’s and Dallas’ cotton, for which the owner charged them freight. The plaintiff might well have concluded that his cotton would be car*218ried on the same terms, particularly as defendant had never made any discrimination among his neighbors, but indifferently took their cotton when he wanted freight for his boat. So far as the community were concerned, the patroon (Howzer) occupied the position of any other master of a boat, and might be regarded as the agent of the defendant to take in and sign bills of lading for. freight. If the defendant had previously employed his boat for his own purposes exclusively, it could not have been fairly inferred that the agent could do what his employer never had done — .but his employer had used his boat in some measure for the copimunity in which he lived, and from his course of dealing with it,'had held himself out as a common carrier. He had not iniact imposed any restrictions on the patroons authority to take in freight, and was clearly entitled to charge for all that was taken. If he had' chosen to make himself liable alone for such'contracts as he himself should make, he should have given some public notice — otherwise how natural was it that others might be deceived — more particularly as his agents b.efore this, according to the testimony of Foyle, were in the habit pf taking in freight for him in his absence. His liability arising from the general implication of law, was, that he would be answerable for the acts of his agent, acting within the ordinary scope of such agent’s usual authority, unless it were specifically limited and restricted. The authority of an agent results from the position in which he is voluntarily placed by his employer; one should not put an agent in any public employment if he is not willing to be liable for his acts, *bona fide*done in such employment: the right of a master to take in freight, arises from his custody of a boat, which is in the habit of carrying for the community.

*Frost,*for the motion.

*Magrath,*contra.

The verdict in this case must stand. Motion refused.

Gantt, Rtchakdson, O’Neall, and Evans, Justices, concurred. Earle, J., dubitante.