The national Republican. [volume] (Washington City [D.C.]) 1866-1870, 1867-03-29
TILED COURTS.

SUPREME CoURr OF THE UNITED STATES
The contract Of afraghtmsnf-W What eonstitntSs IL
under the Lonistana eode-Ths New Orleans,
Opslousas and Great Wsstern Railroad Company,
plaintiff in error, ps. W. s. Lindsay, q ak-This
was an action upon . contract Of sfreightment
The Judgment below was for the PLAINTIFF, and the
corporation appeal to this court
By the Court-Mr. Justice Swsyne delivering tho
opinion This 10 q writ Of error TO the Circuit
Court Of the United States for the Eastern District
Of Louisiana. The plaintiffs in error were tho do.
PENDANTS In the court below. The plaintiffs In that
court hod their petition, setting forth q contract
between them and the defendants, whereby the
plaintiffs agreed 10 transport from Wales and de.
liver ut Algiers, opposite to New Orleans, certain
railroad iron for the defendants and the defendants
agreed to pay them stipulated computation. for
such transportation and delivery. The petition
averred performance and sought to recover the
specified compensation, less the amount which the
plaintiffs had already received.
The defendants, by their answer, denied per-
formanco, claimed damages by reconyention for
nonperformance and pleaded the statute Of iimita.
tons.
The parties waived the Intervention Of q jury,
and submitted the case to the court.
The court found the facts specially and gsve judg
mont for the plaintiffs below. las-
The findings Of the court were set forth In the
record, and arc to DO regarded special verdict.
The court found, among other things, that the
iron had not been delivered within the contract
time, but that II had been agreed between the par.
ties In September, 1854, that the plaintiffs should
allow the defendants eight hundred pounds on 40.
count Of past delays and that the time for further
deliveries should be extended to the LIST Of Decsm.
Der following; that the defendants refused to re.
ceive the iron rendered or shipped after the last
mentioned time, and that II was thereupon disposed
Of, with the assent of all concerned; that tho de.
PENDANTS had not shown any damage arising from
tho delays; that tho delivery Of tho iron at New
Orleans was q breach Of the contract, and that the
defendants entitled to rocoupe the cost OF re-
moving II to Algiers.
Upon these principles the amount to be received
was computed, and judgment was rendered accord
iugly.
Tho court was of the opinion that the contract
was mot contract for the payment Of the freight
Of ships and other vessels within tho 449th article
Of the civil code" Of the State and overruled the
defence that the action was thereby barred.
No bill Of exceptions was taken, and but small
part Of the evidence appears in the record.
Two errors are relied upon; one Of them relates Ia
| the statute Of limitations. We think tho ruling
Of the court upon this subject was correct. The
findings show that the plaintiffs were not ship.
owners, and that their contracts was wholly diff.
ferent from one Of affreghtment. The article Of
the code relied upon had, therefore, no application
to the case, nor can the demand DO regarded as an
| open account.
The contract was the foundation Of the claim,
and though not fulfilled according 10 It's letter,
either to time place Of delivery yet with the
| qualifications which the law under such orcum.
stances imposes It determined the respective liz.
blities Of the parties. Tho plaintiffs could not 70.
cover more than the contract price, and the 70,
coupement of the defendants was governed by III
requirements on the part Of the plaintiffs. Its pro-
visions dement's in the case vital to the rightl
Of both parties. By their light and the law arising
upon the facts as developed In the evidence the
court was to DO guided In coming to Its conclusions
The other error insisted upon Is that there Is q
l Z. - LaN l. f-.A A.
court and by the case made by the plaintiffs pet
| ton.
II does not appear that any Of the eyidenc,
offered by the plaintiffs In the court below was OBJ
jected to by the defendants does II appear thai
any exception was taken when the court announced
Its findings, or subsequently when the judgment wa
entered.
1t was in the power Of the court to permit tn,
petition to be amended, and the proper amend
nients would doubtless have beon made II the OBJ
lection had been stated. 1t Is presented for tn,
FIRST time in this court. Under these circum
the plaintiffs in error in the court below and they
arc concluded by that waiver in this court.
There Is another ground upon which this .excep
ton must be oyerruled 1t Is not alleged that tn,
findings Of the court were unwarranted by th,
proofs, nor that tho judgment does not conform L
the law and justice of the case as the Is her,
presented.
The objection Is purely technical It lies who'll,
In the variance between the ayerments Of the petit
ton and the facts as found by the court.
The thirty second section Of the judiciary act o
1889 declares that the courts of the United States
I" respectively, shall proceed and give judgmsn
according as the right Of the cause and the matte
in law ms shall appear unto them, without regard
ing imporfections defects, or want Of form In sucl
writs declaration, or other pleading, return pro
cess, or judgment, or course Of proceeding whatso
ever except those only in case Of demurrer, whicl
the party demurrin6 shall specially set down ant
express, together with his demurrer as the cAus
thereof"
Tho effect Of this provision is decisive. No cas-
more proper than the ono for US, for its applica
ton, can DO presented.
The judgment below is affirmed, with costs.