Year: 1861

ls rssldns to have been full and accurate. Nor do
y unuerssand that counsel in argument here call


cbsroa me correctness Of al that part of the


SL1rse wnien u setout. Certainly no valid obiec-


O can DC taken 70 that part of IT, relating n tha


o9y u s1s piaintfs in error, to have shipped The


wneat OF Nelson either under the special contraet


70 90 so' II the jury should believe there was srch


q contract or il none, then nnlev. a. s] :


the company imposed by law a. cornp.o- cs,; =.


If the contract existed, the PLAINTIFF in e - =
bound to ship the wheat according to the contrsct
unless prevented or excused from so doing By Mel


tifs in error, as common carriers to have sent c.
I ward the wheat within reasonable time afss I.


was received for transportation. Such Is the ef


of this part Of the charge. The law is that in the


absence of special cnntract the carrier is boand


to perform his duty, e. deliver the goods at their


destination or at the end Of his route to the next


carrier, in a reasonable time, according to the


usual course of his business, with all convenient


dispatch. And If the carrier, or his servant, with


in the scope of his employment and duty enter into


any special contract TO deliver In any particular


time place, even beyond the terminus Of his par


tcular route it will be binding, and the owner, il


would seem, may recover damages, with reference


to expected profits, had the goods been delivered in


time. But if the carriers, being = railway compa-


ny make no special contract TO deliver in any par


dcuiar time, and the delay happen in the transporta


uon IN consequence of an unusual press in business


suO company having area6O16Dle EQUIPMENT, Tor
ordinary purposes, and the goods being carried


with as much expedition practicable under the
circumstances, they are not liable for damages


And for any injury to the goods, during the delay


tne company are liable. Redfeld on Railways 3IS,


3d. Applying these principles to the facts of this


case, it would be difficult to affirm that the plaintiffs


IN er1 or had shown any satisfactory excuse for the
delay in regard to this wheat ~ = : =


SlO S43. As here if the contract was merely ere


eoTy, between Nelson and Gates and the latter was


only to pay for the toeof which the former should


cause to be delivered to him. by given dav IN Nevr


York-then, until the delivery the wheat would be
at Nelson's risk, he wonid be the owner and the
proper person to sue. The was put to the lury
in these two aspects and they thus found the right
of suit in Nelson; and this court cannot say their


verdict is unwarranted by the proof But as TO the
wheat bought and started within the terms of this
contract it is not in this case very material to en-
qure as to its ownership, during its transit New
York; and if it were, II was question dependent
upon the terms of the contract which, not being in
writing was for the jury to SETTLE and TO which
we must suppose they were properly instructed.
We say 1t Is not material, because the uncommon |
delay of the plaintiffs in error to carry the wheat
delivered to them by Nelson well as their neg
leet to take due of it while in store, was |
breach OF their contract, and an omission of duty
which simultaneously gave cause of action-al- |
though the amount Of damage loss from the inju-
ry, might not be ascertainable until the subsequent
sale OF the wheat was actually made. Wilcox et al
vs.. The Executors of Plummer, 4Pit. I72 This
right to sue and recover damages undoubtedly ac-
crued TO Nelson since the wheat lrhis in Store and
before it actually started en- route for New York
unquestionaby belonged to him. and that which was
started out of time had ceased to be of the re-
qusite quality. and in regard to which it seems pro-
bale the chief if the only damage was sustained
continued to be his, until its actual sale in New
York.


But it is said that Nelson cannot maintain the ac-
ton. becease the wheat did not beleng to him. but
to Gates. and that Nelson was merely his agent in
purchasing it. Upon this question the Circuit Judge
(so far as we have the charge) instructed the jury
that if they should believe, from the proof that
Nelson was employed by Gates to purchase the
wheat from him (Gates,) the wheat thus purchased
would be the propertyof Gates and not Nelson's and
therefore the action could not be maintained. But
en- the other hand. if the jury should believe from
the proof, that Nelson and Gates had entered into
contract by the terms of which Gates had agreed
t. give Nelson specified price, for the wheat that
Nelson would believer Gates, in the City of New
York by a specified time, and this wheat was pur-
chased by Nelson, to I'LL said contract it would be-
long to Nelson until reached the city of New York
This instruction is not erroneous. As general
rule the consignee is the proper person to sue the
carrier for breach Of duty or contract in regard
to the property shipped. But this is because he is
would have been the cause if Nelson. as his agent,
had bought the wheat here for Gates absolutely and
shipped to HIM as purchaser, at all events. II
then would have been his property, even from the
|
ment, and he should sue. But on the other hand it
is equSlly well settled, that the consignor who I
owns the goods and sustains the injury from
the damage or loss, is the proper party to bring
the action against the carrier. Redfeld on
railways, 322 Turney VS.. Wilson, Z Yerg.


Again it is insisted that Nelson has in truth sus
tanned no damage-that though the greater part of
the wheat reached New York out of time, yet that
Gates received and sold Il Without oo-
lection, and became LIABLE if it had been duly de-
vered So that Nelson has, in law, the full benefit
of his contract There is no doubt that principal
nay ratify the act of who has acted in his be-
half his agent, though without authority, or who
has transcribed his powers; and In this way give
1aldty to the act if it had been strictly autho-
.ized in the first instance. This ratification may
axe place not only directly, but may be implied
rom collateral facts. The question whether the re-
,eipt and sale Of the wheat at New York amounted
% ratification of the acts of Nelson in sending il
,ut Of time, not q matter of law for the court
)ut dependent on circumstances attending the trans
Icton, and was subject properly to be left to the
ury. Bell, ct al 4, VS.. Cunningham, Pet 69 81.
FOR the wheat which arrived out of time Gates
aims to account to Nelson for its net proceeds as
actor, and not as purchaser, thus throwing the
he loss produced by the wrongful omission of the
Plaintiffs in error, upon Nelson. Now in what char
cter Gates accepted and sold this wheat, whether
3 a purchaser under the contract, factor for
Selson and whether he had waived any of his rights
pon the contract, against the latter, we're all
uestons of fact for the jury, upon which we must



the court the bill of exceptions contains no
animation to the eontrary-and upon which they
nust have passed and found that, after the lst Of
october, Gates to be held as the factor of Nell
on. If so, are bound to respect the finding u
be same, in our opinion, being supported by the
acts. So far as Nelson complied with his =
ontraet and furnished wheat of the quality
nd within the time limited, his liability for Gates vi
between them, was discharg-
d and Gates became primarily bound to the hold
RS of the bills to save him harmless. But as to A
le acceptauces not SO met the rule is precisely the
everse, and Nelson remained bound TO place Gates


funds to meet them, the same as in the case Of an
acceptance. Such, it seems to Us
pom this contract, was the relation between these
arties. The wheat that came TO Gates hands from
elson, not of the quality required in the contract
not within the time limited he was not called
pom to reject altogether neither could il be held ~
lat its rsceptan and sale by Gates in and of ITSELF 81
thout some new engagement, or election by him cc
that effect, should charge him as purchaser 'u
nder the contract. On the contrary. he might well
.ceive all such wheat on Nelson's account, and sell
le same as his agent factor. Indeed, it would
i'll be the duty Of Nelson to continue to place Gates
funds until any excess of acceptances, over and
1ove those satisfied. under the contract which ex 4
red the Isl of October, was met We do not per-
ave that this view of the case is changed by the
me at which the bills were drawn and accepted
hey not in file in evidence, but their amount
stated to have been about thirty-three thousand
'ars, and they do not appear to have been drawn q
accePtcu @AseE ZIG HLsS ol OctOOer; ana We are y
tisfed they are not, since Gates proved that he
ade the acceptances upon the faith of the arrival
the wheat at New York in time to meet Them
and would not have done so if he had suppos-


or known it was to be delayed from thirty
sixty days in store at the depots of the plaintiffs


error. And Besides the bills having matur- =
were to the amount of 24.000 dollars-re- =
wed in the Planters Bank of Tennessee at Athens,
tween the lst and 9Th of October, for the further
ne of 60 days, showing that they must have been
avn early in August. In truth it is to be infer
that they were drawn and accepted, anteriGr to