New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1874-11-08

stances their imputation Of the net pro-
ceeds 60 che payment OF such an account
one, too, which 10 not shown to have been
liauidated by Freshman, was without binding
effect, and must be disregarded. Commission
merchants and factors may be regarded az
depositaries of their patrons, in material
sense, and can not retain funds coming into
their hands, in payment of an account
against them, which is not protected by
privilege and liquidated. They are. more
accurately speaking. the agents OF conslgn-
ors, whose mandate Is TO sell, and who must
deliver 70 their principal whatever they
have received by virtue of their procuration:
The demand Of plaintiffs must De sustained
TO the extent Of the net proceeds Of the six
bales Of cotton sold by them for Fleshman,
say S2ss 0S. with legal interest thereon
from the day of the demand made by plain.
tiffs on them. and for all costs.
Edward Thompson We. steamer Big Horn,
owner and master.-The plaintiff in this
case shipped Il ,43 pounds freight on the
steamboat Big Horn on tho fifth day Of
September. A. d. 1872. consigned 70 order,
TO be delivered at Boon's Bend, Red river.
at two card rates. Owing to the condition
Of the river 1.-THE low stage OF the water
tho captain thought it impracticabIe to
comply with his contract after proceeding
on the Journey as far as Shreveport. and
consequently etored the freight there and
returned. The consignor paid charges on
! it and had it forwarded by rail thence to
| Marshall, Texas, and thence to Jefferson.
These reshipments and storage necessitated
an expense of Sl9l 0S more than plaintiff
| would have been obliged to pay had his
cording to the bill of lading. The defense
| is that it was impossible for the Big Horn
to 90 as tar as BoOn's Bend on account Of
| the stage OF the water. That the steamer
was to have two card rates for freight.
! rate beng one dollar by the understanding.
| whereas the plaintiff has allowed but fifty
| cents as a one card rate. A unconventional
| costs. The disputed facts in tho case are:
| First-What charges was the steamer en-
| titled to make for freight T! Where was she
| to take the freight!
What necessary expense was plaintiff
! subjected to in order to accomplish that
! which the Big Horn had contracted to do !!
Was it impossible for her to have pro.
| ceeded on her voyage TO Boon's Bend, and
| if SO. what duty devolved on the steamer
with reference to the freight! !. As to the
charges, the evidence prepOnderates in
| favor Of the plaintiffs allowance Of freight,
and this should have carried it to Boon 8
Bend instead OF Shreveport. ?. The desti.
| nation of the freight. as per bill Of lading.
was Boon's Bend. ). There is no evidence
tending to show that the expenses incurred
by plaintiff were exorbitant or unnecessary.
| the impossibility Of proceeding on her voy.
| age. etc. the evidence shows that the water
was low. but it does not sufficiently show
! that it vas practically impossible for the
| steamer to comply with her contract.
Counsel for defendants urged that the law
does not require masters, owners OF vessels
and common carriers to do an impossible
Il l.. hoo al ,oh
proof must be produced Of the ;mpossibility.
I The mere allegation, or the announcement
by counsel ct the fact. is not sut1i'
cient. There is no proof in the record
| that there were no means OF reshlp'
| ment, nor no proof that q fair attempt
had been made to reship. The right to
! store the freight could not modify or in any
manner change the obligation to transport
it to the port where it was to be delivered.
See l'itkin vs.. Rousseau. ii a. 81. After
it was stored. it was the duty of the master.
owners. ETC.. to reship, and not wait for the
cousignor to do so. 1t is alleged in the an.
| swer that it was impossible for the steamer
to proceed further than Shreveport. and to
this allegation it was admitted responder:
would swear if present. 1t is also alleged
that ne notified the shippers that he had
.'stored the freight at Shreveport for the
purpose of sending it forward as soon as
there was sufficient water to enable any
boat to navigate the river above Shreve
port" But as before remarked. there j. nc
proof that any effort was made TO forward
the freight. Under all the circumstances
and under the proof orally made. am o!
opinion that the rates of freight for this
class is rather moderated by plaintiff and
overrated by defendant. The evidence
offered on the trial showed that proper
rate would have been 81 80 per hundred
pounds. the one card rate being for tina,
class Of freight seventy.tive cents per io(
! pounds. The suit must be dismissed as Il
j. G. Wicks, whose answer denies any liza
bility. and concerning whom there 10 NJ
tor in other respects. suhjec; to reduction
| as above indicated.