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Reports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 6) online

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sented in it was, had the defendant in error, a just right to demand
and receive freight, and if he had, what amount ? But the learned
judge, before whom the cause was tried, appears to have been of
opinion that it was not competent for the plaintiffs in error, in the
form of action adopted here, it being trover, against them, to make
this question a ground of their defence. The second error assigned
contains an exception to the opinion of the judge on this point ;
and I will consider it first, because if it shall be made to appear,
that the plaintiffs in error had a right to show that the defendant
in error, in consequence of the negligence or unskilfulness of those
employed by him to conduct his boat, had not fulfilled his contract,
for carrying the nails, in such a manner as to entitle him to receive
the stipulated freight, and that it was competent for them to inter-
pose this as an objection to his recovery ; it will not be difficult to
show that Isaac McGinley Reed and John Hill Maffit were incon>



441 SUPREME COURT {March Term,

[Humphreys v. Reed.]

petent witnesses for the defendant in error, without having a re-
lease from him first. Indeed, I am inclined to believe that his
honor the judge, on the trial, would have held them incompetent,
had he considered the matter just mentioned an available defence
for the plaintiffs in error. It appears that the defendant in error,
by the terms of the receipt which he gave for the nails, expressly
undertook to deliver them to Mr. Lyman in Philadelphia, at No.
17 in Walnut street, upon being paid the amount of the freight
therein mentioned. Now suppose that the defendant in error, or
his authorized agent, after having received the freight from Mr.
Lyman, had refused to deliver the nails, and Mr. Lyman had there-
upon taken possession of them, it will not be pretended that the
defendant in error could have maintained any suit or have had any
claim against him for doing so. Or suppose that Mr. Lyman,
instead of taking possession, had brought an action against the
defendant for a breach of his engagement, it cannot be questioned
that he would have been entitled to recover. Griffith v. Ingledew,
6 S. & R. 429 ; Evans v. Martlett, 1 Ld. Raym. 271 ; 12 Mod.
256. But if the defendant in error or his agents have, through
want of skill or proper care and attention on their part in the
transportation of the nails, been the occasion of their having
*4491 rece i ye( l an i n j ur y lessening their value *to the full amount
J of the freight, it is then equally clear and unquestionable
that he has not entitled himself to demand and receive it. This
proposition is not only clear upon principle, but well settled by
abundance of authority. By the express terms of his contract, he
was to deliver the nails in the like good order and condition in
which they were when he received them, unless injured by the dan-
gers of the navigation. This exception cannot be said to embrace
an injury or damage arising from negligence or want of skill on
the part of the defendant in error or his agents ; so that if the nails
received injury, from both or either of these two latter causes,
equal in value to the amount of the freight agreed to be paid, the
defendant in error has failed to perform the condition, or at least
one of the conditions, upon which his claim to the freight was to
arise, and therefore, according to the terms of his contract, cannot
claim the freight in law. Neither can he pretend any claim to it
in equity or good conscience, seeing he has occasioned a loss to the
owner of the iron equal in value to the amount of the freight. If
it be, then, that he has no claim to the freight, it is impossible to
conceive any ground upon which he would be justified in withhold-
ing the nails from Mr. Lyman, who must be regarded as the legal
owner of them. Hence he would be bound to deliver the nails
without making such a claim ; and if he had delivered them
without making it, or saying anything about it, he would not be
entitled to maintain an action for the recovery of it. This doc-



1841.] OF PENNSYLVANIA. 442

[Humphreys v. Reed.]

trine will be found to be fully sustained by the following cases ;
Bartram v. McKee, 1 Watts 39 ; Leech v. Baldwin, 5 Id. 446 ;
Gogel v. Jacoby,. 5 S. & R. 122. Then, if the defendant in error
has no claim to freight for the transportation of the nails, upon
what ground can he support an action either for it or for the nails,
against the plaintiffs in error ; since Mr. Lyman, to whom he was
bound to deliver the nails, has received them and is satisfied. If
he has no right to demand and receive the freight, he can have no
lien on the nails or right to maintain an action for them on that
account against either Mr. Lyman or the plaintiffs in error. If
he has no right to freight, and consequently has received no actual
damage by the plaintiffs in error having delivered the nails to the
person entitled to receive them, and to whom the defendant in erroi'
was bound himself to have delivered them, the only possible ground
upon which he can, with the least right of shadow in law, claim to
sustain this action, is that of his having acquired a special property
in the nails as a carrier of them, and having delivered them to the
plaintiffs in error as his bailees. But as a carrier, he could only
claim the nails for the purpose of discharging his engagement or
trust by delivering them to the consignee. This, however, has
been done by the plaintiffs in error for him, so that he has no
ground of Complaint or action on that score. And as to any obli-
gation which the plaintiffs in error were under to him by his bail-
ment of the nails to them, that *is also discharged, if he r*AA*
has no claim to freight, by their having delivered the nails "-
to the consignee, who had the right to demand and receive the
nails, or the value of them, from either the plaintiffs or the defend-
ant in error. The bailor in such case, who has no right to withhold
the possession of the goods from the right owner or consignee,, can
maintain no action against his bailee for having delivered them to
such owner or consignee upon their being demanded. This we
have decided during the present term, in the case of King et al. v.
Richards et al., 1 to which I beg leave to refer for the reasons
advanced and the authorities cited in support thereof. On this
point, we therefore think that the District Court erred in the
instruction which it gave to the jury ; which disposes of the first,
second, and sixth specifications under the second error.

As to the third specification, it is doubtless true that every
carrier of goods, on board of a vessel at sea or other water, is con-
sidered under an implied promise at least, if not an express one,
that the vessel is seaworthy. 2 But I am not aware that the circum-
stance of the goods on board, having become injured by water,
would of itself be evidence sufficient to warrant the jury in finding
that the promise of seaworthiness was broken, unless the carrier
made it appear otherwise by the production of evidence on his part.
1 Ante page 418. See 1 Whart. 406.



443 SUPREME COURT

[Humphreys v. Reed.J

The requisition that the vessel shall be tight and strong, and fit for
the purpose for which it is offered by the carrier, arises from the
promise, on his part, implied by law, if not expressed, to that effect:
and it would be unreasonable to presume or infer a breach of such
promise, or indeed of any promise, without evidence adduced show-
ing directly that it was so, or proving some circumstance or fact
from which it might naturally and fairly be inferred. Now it
appears to me that the nails might have become wet in various
ways, and thus have received the injury complained of, without the
boat, in which they were on the canal, being in the least deficient,
but, on the contrary, perfectly tight, staunch and strong ; and if
so, it might be doing great injustice to infer a breach of the promise
from that circumstance. We therefore do not conceive that it
would have been right in the court to have instructed the jury as
requested on the point referred to in the third specification. See
Amies v. Stevens, 1 Stran. 128 ; Lyon v. Mells, 5 East 428 ;
Abbott on Shipping 225. We also think that it would have been
error in the court to have instructed the jury as requested by the
counsel of the plaintiffs in error on the point mentioned in his
fourth specification. The receipt, taken by the captain of the boat
for the delivery of the nails to them, does not show that they were
delivered for the use of the consignee, nor anything like it. In
truth, it does not appear from the face of the receipt itself for what
*4441 P ur P ose ^ey were *so delivered. Neither does it appear
J that any other evidence was given tending to prove that
they were delivered for the use of the consignee. Neither do the
plaintiffs in error appear to have been the agents of the consignee;
nor was their wharf the place appointed for the delivery of the
nails : No. 17, in Walnut street, is expressly mentioned for this
purpose in the defendant in error's engagement. There appears,
therefore, to be no gronnd for saying that a delivery on the wharf
of the plaintiffs in error was a delivery to the owner or consignee.
Then in regard to the fifth specification, which charges the court
with error because it did not instruct the jury that the boat's strik-
ing upon a stone in the canal was not a danger of the navigation
excepted by the bill of lading. 1 Now the striking of the boat upon
a stone or rock in the canal may or may not fall within the excep-
tion. Whether it would or not, must always depend upon the par-
ticular circumstances attending it, either going to show that it
happened in consequence of some fault on the part of the master or
those who were entrusted with the management of the boat, or that
it occurred without any default in them. In this latter case, the
loss occasioned by the striking of the boat against the stone would
seem to come fairly within the exception ; but in the former, it
would be clearly chargeable to the master or owner of the boat.

See 8 W. & S. 49.



1841.] OF PENNSYLVANIA. 444

[Humphreys . Reed.]

For instance, if the stone, from its position, may be readily seen
and avoided by those having the conduct of the boat ; or although
not visible, yet if its situation be generally known, the loss ought
to be imputed to the fault of the captain or those having the direc-
tion of the boat. But if, on the other hand, the circumstance of
the stone being in the canal was not generally known, and unknown
to the party having the command of the boat, and was invisible to
the common eye, the loss occasioned by the boat's striking upon it
ought to be considered as coming within the exception, which
embraces all dangers of the navigation. See Abbott on Shipping
257. It was not, therefore, for the court to give such instruction
as was asked for on this point ; because in either case, it was a
question of fact to be referred to the decision of the jury. But it
may be observed that, in the absence of testimony acquitting the
captain, or master of the boat, of all blame or default upon his part,
the jury may presume that the loss was occasioned from his negli-
gence or carelessness, and therefore make him or his employer liable
for it. Beckman v. Shouse, 5 Rawle 189, 190.

Having now disposed of all the specifications under the second
error, the first remains to be considered. The question raised in it
is, were the captain and steersman of the boat competent witnesses
for the plaintiff below, without a release from him ? " Although."
says Mr. Starkie, in his Treatise on Evidence, 1 vol. 113, "an
agent who has actually executed the business of his principal is, as
it would seem, in all cases competent to prove that he acted accord-
ing to *the directions of the principal, can never maintain p , . ?
an action against his agent for acting according to his own *
directions, whatever may be the result of the cause ; yet if the cause
depend upon the question, whether the agent has been guilty of
some tortious act, or some negligence in the course of executing the
orders of the principal, and in respect of which he would be liable
over to the principal if he failed in the action, the agent is not
competent without a release." The principle thus laid down by
Mr. Starkie seems to be not only reasonable, but to have the sup-
port and sanction of judicial authority. See De Symonds v. De la
Cour, 5 Bos. & Pull. 374. So, in accordance therewith, it was
held in Green v. The New River Company, in an action against a
master for the negligence of his servant, that the latter was not a
competent witness to disprove the negligence without a release. 4
T. R. 589. See also to the same effect, Miller v. Falconer, 1 Camp.
251 ; Morish v. Foote, 2 Moore 508 ; Wake v. Lark, 5 C & P.
454 ; Kerrison v. Coatsworth, 1 Id. 645 ; Whitamore v. Wa-
terhouse, 4 Id. 383 ; Sherman v, Barnes, 1 M. & Rob. 69 ;
Spitty v. Bowens, Peake 53. So in Harrington v. Coswell, 6 C.
& P. 352, Mr. Justice Patteson held that the servant of the car-
rier, against whom the action was brought for negligence of the



445 SUPREME COURT [March Term,

[Humphreys , Reed.]

servant in carrying a parcel, was not a competent witness, nor made
so by the statute 3 & 4 Will. 4, c. 42, s. 26. Now, although the
present is not an action brought by the owner of the goods against
the carrier for a loss sustained through the negligence of those
employed by the carrier to convey the goods, yet negligence on
their part was properly made the ground of the defence against the
carrier's claim for freight : so that the case depended, in the lan-
guage of Mr. Starkie, upon the question whether the agents of the
party introducing them as witnesses on his behalf, had not been
guilty of some negligence in the course of executing his orders.
They had, from their position, the entire management and direction
of the boat ; and if by their negligence, their employer was alleged
to have lost his right to recover, from the owner or consignee of
the nails, the freight agreed to be paid for their transportation, it
is evident that they stood liable to him for the loss, -in case he
failed to recover on that account, and consequently were interested
in promoting his recovery of the freight from the plaintiffs in
error, by bearing testimony to the fact of there being no negli-
gence on their part, and showing that the injury to the nails had
arisen from some other unavoidable cause. We therefore think
that the depositions of Isaac McKinley Reed and John Hill Maffitt
were improperly admitted. The judgment is reversed and a venire
de novo awarded.

Judgment reversed, and a venire de novo awarded.

Cited by counsel, 1 W. & S. 322 ; 1 Wright 175.

Cited by the court, 2 Jones 85.

|| Distinguished, as to the onus of proof of the negligence of a carrier, in
regard to a loss arising from an alleged excepted cause : Patterson v. Clyde,
17 Smith 506.||



*446] *[PHILADELPHIA, APRIL 24, 1841.]

Walters against Swallow.

IN ERROR.

The defendant had indorsed a note for the accommodation of a prior
indorser. When the note became due, A., the holder, called upon the prior
indorser, who said he was unable to pay, and asked for time, and offered to
give his note for the interest which would accrue upon the enlargement of
time. The note was received by A., without application to the defendant;
who, however, afterwards promised to pay the amount to the plaintiff, to
whom A. had indorsed the note after it had become due. Held (I), that the
defendant was discharged by the conduct of the plaintiff; (2), that the pro-
mise to pay was without consideration, and not binding upon the defendant;
(3), that the plaintiff could not maintain an action in his own name upon
auch new promise.






1841.] OF PENNSYLVANIA. 446

[Walters v. Swallow.]

ERROR to the District Court for the City and County of Phila-
delphia.

This was an action of assumpsit by William N. Swallow against

, Peter B. Walters, upon a promissory note, dated the 26th day of

July 1837, for $508.44, at 90 days, drawn by David Swope, and

endorsed by James Clark, Jr., and Peter B. Walters, the defendant.

On the trial before Stroud, J., on the 6th of April 1840, the
plaintiff having proved his case, the defendant called James Clark,
Jr., who testified as follows :

" Sometime in the year 1837, Mr. Peter Walters endorsed this
note for my accommodation. I then gave the note to Walters to
get discounted. I was indebted to Mr. Walters ; I was indebted to
him over one hundred dollars. Walters kept the note for two
weeks ; he said he could not get funds without endorsing it. He
did get it discounted by Jacob Swallow, the day the note became
due. Swallow *called on me ; I told him it was out of my T-^AAJ
power to pay the note ; I wished him to take it up. He L
said he wanted the money, and had so told Walters. He agreed to
extend the note for thirty days. I sat down to write a new note,
and got it nearly written, when he said he was in a hurry and could
not wait. I tore up the note I had partly written ; I gave him the
bank notice, and a due-bill for thirty days ; this was in the after-
noon. Swallow never called on me for payment of the due-bill.
Mr. Walters did not know of the arrangement entered into by
Swallow and myself. The due-bill was for two or two and half
per cent, per month." Being cross-examined, he said, " I have
been discharged under the insolvent laws. I do not remember that
Walters said that Swallow had discounted the note on his endorse-
ment; he retained 100 or 150 dollars."

The plaintiff then called Jacob Swallow, who testified as follows :

" In August 1837, Peter B. Walters and James Clark called on
me with this note. Walters said, ' I have endorsed the note, and I
wish you to advance the money on it.' I said that I had the
money, and would loan the money, if it would be punctually paid
when the note became due. I paid some of the money in bank
notes. Walters asked me if I was going to draw a check, to draw
it for $150, payable at the Northern Liberties bank. I drew it to
the order of Peter B. Walters. The check was dated August 10th
1837. I drew a check for Clark for $295.32 ; this was not drawn
to order. Walters took- both. The day the note became due, I
first went down to see Walters. He said he could not pay it, but
could if he had a little time. I then went to Clark ; he said he
was not able to take up the note. He wanted to know if I would
extend the time. He gave me a due-bill for thirty days after date.
I told Walters that the note would be protested. He said he could
pay the note if I would give him a little time. I did not agree to



447 SUPREME COURT [March Term,

[Walters . Swallow.]

give a certain time. Walters came down to Brewster's office, and
agreed to give a bond and mortgage for the amount of the note.
This was before I sold the note to my son. No time was set be-
tween Clark and myself. I refused the thirty days. He said it
was for interest which would be due on the note. Walters said if
I would give him a little time, he would pay it." Cross-examined.
"I cannot say when I left the due-bill with Mr. Brewster; can-
not say if before or after suit brought."
The learned judge charged the jury,

1. That an agreement between the first endorser (Clark), and
the holder of the note (Jacob Swallow), when it became due, by
which the time for the payment of the note was to be extended, if
founded on sufficient consideration, and made without the consent
*J481 f * fc ^ e defendant (the second endorser), would prevent the

-* plaintiff, (who, it is agreed, took the note after it had be-
come due), from recovering in this action. But that such agree-
ment, unless founded on sufficient consideration, would not prevent
the plaintiff's recovery.

2. That an agreement to grant an extension of time for payment,
upon no other consideration than a due-bill for the amount of the
mere legal interest calculated in reference to the stipulated time of
extension, would not be a sufficient legal consideration to support
the agreement, and would not bar the plaintiff's recovery.

3. That if under the name of interest, the jury believe the due-
bill had been given for a larger amount than the proper legal inter-
est of six per cent, per annum, computed upon the stipulated time of
the extension, yet this would not be a bar to the plaintiff's recovery ;
because no more of the due-bill could be legally exacted or recovered
than the amount of the legal interest.

4. That if with full knowledge of the alleged agreement, by
Jacob Swallow with Clark, to give the latter a time for the payment
of the note beyond the period fixed by the note itself, the defend-
ant promised to pay the note to the said Swallow, this promise
would bind the defendant ; and the defence arising from the agree-
ment to give time would not avail him.

The jury found for the plaintiff accordingly.
The following specifications of error were filed.

1. Because the judge erred in charging the jury, " that an agree-
ment to grant an extension of time for payment upon no other
consideration than a due-bill for the amount of the mere legal
interest caculated in reference to the stipulated time of extension,
would not be a sufficient legal consideration to support the agreement
and would not bar the plaintiff's recovery."

2. The judge erred in charging " that if, under the name of
interest, the jury believed the due-bill had been given for a larger






1841.] OF PENNSYLVANIA. 448

[Walters . Swallow.]

sum than the proper legal interest of six per cent, per annum,
computed upon the stipulated time of extension, yet this would not
be a bar to the plaintiffs recovery, because no more of the due-bill
could be legally exacted or recovered than the amount of the legal
interest."

3. " That if with full knowledge of the alleged agreement, of
Jacob Swallow with Clark, to give the latter time for the payment
of the note beyond the period fixed by the note itself, the defendant
promised to pay the note to said Swallow, this promise would bind
the defendant, and the defence arising from the agreement to give
time would not avail him."

Mr. McCall, for the plaintiff in error, cited Okie v. Spencer, 2
Whart. 253 ; Klippinger v. Kreps, 2 Watts 45.

*Mr. St. G-eo. T. Campbell, and Mr. Brewster, for the
defendant in error, cited McLemore v. Powell, 12 Wheat.
554 ; Hall v. Constant, 2 Hall's N. Y. Rep. 185 ; Pabodie v. King,
12 Johns. Rep. 425 ; Philpot v. Briant, 4 Bingham 717 ; 15 E. C.
L. R. 126 ; Miller v. Holbrook, 1 Wend. 317 ; Planter's Bank v.
Sellman, 2 Gill & Johns. 230.

The opinion of the court was delivered by

KENNEDY, J. The case is very imperfectly stated in the paper
book, which has been furnished of it ; but as I understand it, the
following questions are presented for our consideration. First, if
the holder of a negotiable note, at the time it becomes payable,
without the knowledge of a second endorser, calls upon the first
endorser thereof for payment, who says he is unable to pay then,
but wishes the holder to extend the time of payment for thirty days;
and to induce him to do so, draws and delivers to him a second note,
securing the payment of the amount of the interest that shall
accrue or become due on the first note at the end of the thirty days,
which is accepted of without objection, and retained by the holder;
will this amount to such an agreement, on the part of the holder,
to give time to the first endorser for the payment of the first note,
as will in law discharge the second endorser thereof? Secondly,
will a promise, by an accommodation endorser to pay the first note,
made after the acceptance, by the holder of the second note, be
binding upon the endorser ? And if so, will a subsequent transfer
of the first note, by the endorsement of the holder, transfer also the
right to the subsequent endorsee to recover in his own name the
amount of money mentioned in the first note, from the endorser
upon his promise made as aforesaid to pay it ?

In order to decide the first quesiton, it will be proper to take into
consideration the design and object for which the second note was



449 SUPREME COURT [March Term,

[Walters v. Swallow.]

given and accepted. It is clear that the avowed object of the
drawer, at the time of giving it, was, that he might obtain an indul-
gence of thirty days for the payment of the first note. It appears that
this was the only reason mentioned by either of the parties then



Online LibraryPennsylvania. Supreme CourtReports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 6) → online text (page 50 of 75)