author: Robertson, Ch. J.

text:
    The Atlantic Navigation Company et al. plaintiffs and appellants, vs. Willard Johnson, survivor, &c. defendant and respondent.
    1. The performance of a contract for the transportation and delivery of merchandise, by their carrier, at the end of the route or voyage, is governed by different rules, according to the character of" the transportation. Coming from a foreign country, it is sufficient that it be landed, when, where and how, the custom of the port, at which it arrives prescribes, when such custom has been so long acquiesced in as to be presumed to form part of the contract; if in the United States, generally by lahding it at the usual landing "place and giving notice to the consignee ; although that does not seem to be the universal rule. Ter Bobebtsob, Ch. J.
    2. Such notice, when permitted to take the place of actual manual tradition, must be a reasonable one. Its publication in a newspaper is not sufficient. But even it," may be entirely dispensed with by a custom of the port, where the delivery is to be made.

      3. Although such landing and notice may be a substitute for actual delivery to a consignee, they will not justify the abandonment of the goods, or their delivery to a stranger; at least until after the .allowance of a reasonable time to the consignee to remove them.
    4. The rule in regard to domestic carriers is that goods transported by them must be delivered to the consignee, and until so delivered, remain at the risk of the carrier as such; except that he may notify the consignees of their arrival, and in case of refusal to take them, store them for their benefit.
    5. The landing of a cargo of oats at a wharf at the place to which they were to be carried, where similar articles for the use of the United States government were landed, without notifying the consignee thereof until afterwards, or otherwise complying with the before mentioned ordinary rules for the delivery of goods by carriers, does-not entitle the carriers thereof to any compensation for their carriage, unless legally excused from following such rules.
    6. An oath taken by the master of a vessel, in order to obtain a clearance, as to the cargo being government stores, or a government cargo which is inconsistent with the rights of the owners or consignees under the bill of lading, is the mere act of an agent of the carriers, and cannot acquire for them any authority to deliver the cargo directly to the government, instead of the consignees, or deprive the latter of any right.
    7; Where the owners of a cargo of oats, having two contracts with the government, wished to apply such pargo upon the one which was the most favorable to themselves, but.were prevented from making such application by.the act of the carriers in placing it, generally, in the hands of officers of the government, instead of the consignee, without such application; Held that the possible acknowledgement by government of a liability under the other contract, or any liability of its officers, for a conversion of the oats without the consent of the owners or consignee, did not absolve the carriers from liability for not delivering according to their contract. That at all events they could not recover freight for goods not delivered according to such contract.
    (Before Robertson, Ch. J. and Garvin, J.)
    Heard November 16, 1866;
    decided June 8, 1867.
    Appeal by the plaintiffs, from a judgment entered upon the report of a referee. The action was bought by the plaintiffs, as carriers, against the defendants, as consignors, for freight upon a cargo of oats; also to recover damages for the detention of the vessel. The complaint alleged that the plaintiffs, the Atlantic Navigation Company, were a corporation created by and under the laws of the state of New York for the purpose of owning and running sailing and steam vessels from the city of New York and elsewhere, and having its place of business in the city of New York. That the plaintiffs, at the times therein-after mentioned, were the owners of a schooner, {Lovett Pea-bock, of New York. That on or about the 20th day of October, 1862, the defendants, who compose the firm of. Baldwin & Johnson, hired of the plaintiffs and employed that schooner to take a'cargo of oats from the port of New York to the port of Alexandria, in Virginia, and the defendants stipulated and agreed to load such vessel with dispatch, and to pay therefor freight for the said oats a certain rate, (five cents per bushel of 32 pounds,) without primage and average accustomed. That on the 11th day of November, 1862, there was shipped on board said schooner a certain number (7870) of bags of oats marked B, containing a certain number (23,30911) of bushels, 32 pounds to the bushel, to be delivered at such port of Alexandria, in Virginia, to the defendants, Baldwin & Johnson, care of J. H. Oliphant, or to their assigns. That thereupon such schooner proceeded to Alexandria, and thereupon the cargo of oats so shipped, was on or about the 25th day of November, 1862, duly delivered to the defendants, and the freight provided for duly earned. That the defendants thereupon became liable to pay to the plaintiffs, as owners of such schooner, a certain sum ($1166.66) for the freight of such cargo, but- the defendants had refused and still refused to pay the same, or any part thereof, although duly demanded of them; wherefore the plaintiffs demanded judgment therefor, for the sum of $1166.66, with interest from the 25th day of November, 1862.
    Such complaint also, for a further cause of action, alleged that the defendants commenced delivering such cargo (7829 sacks of oats) on board the said schooner, then lying at a wharf in the city of New York, but that although she was ready to receive said cargo from that time forth, the defendants neglected and refused to deliver the residue of such cargo of oats on board for a period of fifteen days, by means whereof she was, without fault on the part of the plaintiffs or those having charge of her, detained and delayed for the period of fifteen days, and the plaintiffs thereby sustained loss and damages for the loss of the use of said vessel at a certain rate ($45.38) for each and every day she was so delayed by the defendants, which amount the use of said schooner was worth, and they demanded judgment for the further sum of $680.70, with interest from the 25th day of November, 1862.
    The plaintiffs demanded judgment for such sums, with interest from the 25th day of November, 1862, besides costs.
    The defendants, by their answer, denied each and every allegation contained in the complaint, except as stated and admitted in such answer.
    The defendants thereby admitted that the plaintiffs were, at the times stated in said complaint, the owners of the schooner mentioned therein, and that the defendants were co-partners and doing business under the firm name of Baldwin & Johnson, and alleged that at or about the time stated in the complaint, the defendants entered into a contract or agreement with the plaintiffs, by which, for the price or compensation of five cents per bushel to be paid therefor, the plaintiff's agreed with the defendants, to transport the said 7870 bags of oats from the city or port of New York to the port of Alexandria, in the said state of Virginia, and there deliver the same to the defendants or their assigns, care of J. H. Oliphant; and they averred that they duly performed and fulfilled all the terms and conditions of such contract, to be performed and observed on their part, but that the plaintiffs did not perform or observe its terms or conditions, to be performed and observed on their part ; and they alleged that said plaintiffs never delivered the said oats to the defendants, or to their assigns, or to the said J. H. Oliphant, either at the port of Alexandria or elsewhere, but that, though often demanded, the plaintiffs neglected to deliver any part of them either to the defendants or to said J. H. Oliphant at the port of Alexandria aforesaid, or elsewhere. Wherefore, and by reason of the premises, the defendants claimed and insisted that the said freight was never earned by the plaintiffs.
    The defendants further alleged in their answer that they were ready, in due time and according to the terms and conditions of the said contract of hiring, to put the said oats on board of said schooner at the port of New York, but that the plaintiffs were not ready with said schooner to receive the same on board, and that when the said schooner was got in readiness by the plaintiffs to receive the said oats on board, the weather was such as to render the lading of the said schooner impossible for a time, and that after said cargo was placed on board, the plaintiffs, for several days, wrongfully neglected and refused to sign the bill of lading, or to sail with said schooner and cargo ; so that if any delay occurred at the port of New York, the same was occasioned by such acts and conduct of the plaintiffs, and not by reason of any neglect, omission or default on the part of the defendants.
    The issues made by the pleadings were referred to a referee, to be heard and determined by him.
    The referee found the following facts, to wit:

      First. That the plaintiffs did not deliver the oats shipped on board the schooner, as mentioned in the pleadings in this action, and which were to have been delivered at the port of Alexandria in Virginia, unto the said Baldwin & Johnson to the care of John H. Oliphant, or their assigns, or the said John H. Oliphant, either at the port of Alexandria or elsewhere ; ^ but though requested so to do by the said John H. Oliphant, neglected and refused so to deliver them.

      Second. That it was not shown before him that the defendant, after commencing to deliver the said cargo- of oats on board of such schooner, neglected or refused to deliver the residue of it on board for any length of time, or that, by such neglect or refusal of the defendant, the schooner was detained or delayed lor any period of time, or that thereby the plaintiffs sustained loss or damage by the loss of the use of the said vessel.
    As a matter of law and as a conclusion from the foregoing facts, the referee found that the plaintiffs were not entitled to recover, in this action, any sum whatsoever, against the defendant, and that the defendant, Willard Johnson, as survivor of Baldwin & Johnson, was entitled to judgment, that the complaint in this action should be dismissed, with costs to the said defendant.
    , It was claimed by the respondent, that the proof conclusively established the following propositions : John H. Oliphant, who resided at the city of Oswego, went to-the city of Washington in the latter part of September, 1862, for the purpose of contracting with the federal government, but before going on to Washington he made an arrangement with the firm of Baldwin & Johnson of the city of Hew York, then largely engaged in the produce and grain business, to supply him with such articles of subsistence and forage as he might contract with the government to deliver, and for which Oliphant agreed ' to pay Baldwin & Johnson the cost juice, with a commission for purchasing, handling and the like. On the 10th or 11th day of Hovember, 1862, Oliphant entered into a contract with the government, through one of its officers, (Ool. Rucker,) for the delivery of 50,000 bushels of oats at Washington, and immediately upon receiving the contract, notified Baldwin & Johnson of the fact, and that he required the oats to fill the contract at once. They had already chartered the schooner (Lovett Peacock) of the appellants to carry a cargo of oats to Alexandria, and were then engaged in loading her. Such loading was then completed, or nearly so, but the bill of lading a was not signed. The schooner was chartered through a broker (Mr. Elwell,) and the terms of the agreement were to be inserted in the bill of lading. That was signed in triplicate on the 11th of November, but as there was a question of demur-rage which the master required to be settled before leaving, the schooner did not sail from New York till the 14th day of November, 1862. By the terms of the bill of lading, Baldwin' & Johnson consigned the cargo of oats to- themselves to the care of Oliphant, at Alexandria; the consignees to have six fair working days to discharge the cargo, and by indorsement, the bill of lading was duly transferred and the cargo assigned by Baldwin & Johnson to Oliphant, and the bill of lading with the transfer of the cargo upon it, was sent to Oliphant at the city of Washington, by mail, on the same day that the schooner sailed from New York. The bill of lading was received by Oliphant about the 15th or 16th, and the schooner and cargo arrived at Alexandria on Saturday, 22d day of November, 1862. Oliphant from the time of the receipt of the bill of lading, went or sent from Washington to Alexandria every day till the 24th day of November, (Sundays excepted, when the boats between the two cities did not run,) watching the arrival of the schooner. On Saturday, the 22d, he went down to Alexandria, but the schooner had not then arrived. The schooner afterwards arrived about 3 p. m. of the 22d, and (Lingo) one of the plaintiffs, who was her master, went to the quarter-master’s office about 5 o’clock p. m. reported the arrival of the schooner, and that he had a cargo for him, and desired him to unload her, which was commenced the next morning, Sunday, the 23d of November, and continued through Monday the 24th. Oliphant sent his agent, Ostrander, down to Alexandria on the morning of that day, who returned by the same boat, and reported to Oliphant the arrival of the cargo at Alexandria, and the latter went down upon the next boat, and reached Alexandria about 10 o’clock a. m. and found the cargo two thirds discharged and the unloading by the assistant quarter-master then going forward. Oliphant protested against the delivery of the cargo under the circumstances, and forbade the unloading of the balance, but the discharge proceeded and was completed on the 25th of November. The plaintiffs had turned over the possession and control of the schooner and cargo to the assistant quarter-master, by whom the discharge was being made, and who sent the oats to Acquia creek as fast as taken off the schooner. Oliphant was ready and offered to receive the oats on the 24th day of November, 1862, and pay the freight thereon, but the conversion of the whole cargo had been completed on the 22d or 23d at latest, and the plaintiffs had dispossessed themselves of the cargo, and had no power to deliver it to the consignee (Oliphant.) Neither Oliphant nor Baldwin & Johnson ever received the oats or any part thereof, or the avails thereof, or any benefit therefrom. The oats were then worth at Alexandria, 84 or 85 cents per bushel, and at the time of the commencement of the action, on the last day of March, 1853, were worth $1.05 to $1.07 cents per bushel. The oats were fully paid for by Oliphant about the 1st of December, 1862, and in consequence of the conversion by the plaintiffs he was compelled to buy other oats with which to fill his contract of 50,000 bushels. The evidence, it was claimed, was clear and conclusive upon each of the foregoing propositions. Upon most of them it was wholly uncontradicted, the plaintiffs giving no evidence in opposition. On every proposition, however, where the evidence was conflicting, the conclusion of the referee was justified.
    The proof on the part of the plaintiffs was mainly directed to showing that one Charles T. Baldwin had contracts with the government for the delivery of oats at Alexandria, and that the oats in question were intended by the consignors, Baldwin & Johnson, at the time they chartered and loaded the schooner, to apply upon these contracts of Charles T. Baldwin, and that the assistant quarter-master applied the oats upon one of these contracts. There were three of those contracts, dated September 20, 1862, for the delivery of 100,000 bushels upon each, in sixty, fifty and forty days from their date. The last one expired on the 19th day of November, 1862, and no attempt had been made toward the performance of either of them.
    The appellants alleged and insisted that the cargo of oats was the property of the defendants, and was intended to be applied on a government contract of Charles T. Baldwin, a son of the defendant William Baldwin, and a clerk in his office, for 300,000 bushels of oats, deliverable at. Alexandria, at 73, 73J and 73J cents per bushel, on which contract the defendants were sureties. That the master of the schooner and the government officer were not informed, until after the delivery of the cargo, when Oliphant was called on for freight, that he had, in his own name, another contract to deliver oats for the government at Washington, made with another quarter-master, (Colonel Bucker,) on the 11th of November, the very day the bill of.lading was signed in New York; and that such contract was a better one for the contractor than the one at Alexandria, as he was to get 79 cents a bushel for oats, instead of 73 and 73-| cents. That Baldwin & Johnson, the defendants, were the real parties in the business, their contracts being made by, and in the name of, Charles T. Baldwin, and by Oliphant for Baldwin & Johnson, and, as they controlled both contracts, they meant to perform 'the more profitable one at Washington, and leave that at Alexandria unperformed. That no notice of the assignment of the bill of lading to Oliphant was ever given to the plaintiffs, and no notice ever given to them, to the master of the schooner, or to the quartermaster, or other officials at Alexandria, of any intention to have the cargo applied on any other contract than that at Alexandria.

      John Sherwood, for the appellants, plaintiffs.
    The judgment on the referee's report in this claim, ought to be set aside.
    I. The cargo of oats was delivered pursuant to the bill of lading. 1. The vessel could not, under the treasury regulations, take the cargo elsewhere than to Alexandria, and there for military purposes alone. No goods, wares or merchandise could be transported to any place on the south side of the Potomac river without a permit of an officer authorized by the treasury department. (Art. 3, 4, 15, Regulations, p. 89.) 2. Under the. application made for the defendants to the officers of the war department, the permit was granted which authorized the revenue officers to clear the vessel^ and the owners of the vessel and of the cargo were equally bound to respect the government regulations, which permitted the cargo to be taken to Alexandria, and to no other port, for the reason that the cargo was to be used by the government for military purposes. The cargo then ceased to be controlled by the rules of general trade, inasmuch as it was destined to be applied to a single purpose at a single place. 3. The vessel and cargo would have been subject to forfeiture if an attempt had been made to order the vessel to Washington, or any other port than Alexandria, without the authority of the government officials. It would have been equally a violation, or, at least, an evasion of the regulations, to have landed the cargo at a place other than the government wharves, and to have disposed of it to private parties. If the master had taken on board merchandise other than that for the government, his vessel would have been forfeited. A contract for transportation of ■ private property, ostensibly or professedly intended for the government, but, in fact, intended to be on private account, would have been void, as in violation of the regulations. 4. The contract of affreightment was made with reference to that regulation, for that was the public law of trade with. Alexandria at that time. The parties in this suit agreed to that regulation as a part of the form of the bill of lading, as much as if they had been indorsed upon, or attached to, that instrument and signed by them. The delivery of this cargo could only take place at Alexandria, and it could only be made in a way that insured the actual possession of the property by the officers of the government. 5. The defendants are precluded from denying that the cargo was for the government, and that it was to be delivered at Alexandria, to be there taken for the sole use of the government.
    II. The plaintiffs have proved the customary mode of delivery at Alexandria of the property intended for military purposes.

      1. All vessels laden with forage reported at the quartermaster’s office, and as soon as possible, (which ivas very soon thereafter,) the vessels were discharged, in their respective turns, by the employees of the quarter-master, without assistance from, or interference by, the master of the vessel. His duties ended when he reported his vessel. The master of the vessel in all things conformed to this custom.
    2. The question then arises, was the delivery in this mode a delivery to the defendants under this bill of lading ? A bill of lading is considered as made with reference to the customs of the place of delivery. (The Grafton, Olcott’s Rep. in Admiralty, J. Betts, p. 48. Gibson v. Culver, 17 Wend. 305.) The defendants then contracted, not only that the vessel should go to Alexandria, but that, on her arrival, as she had property intended for government, (and she could have no other,) the master should report to the quartermaster, and that the cargo should be discharged by him. The only act of the master was his report to the quarter-master, which every vessel was bound to make. The defendants knew, or were bound to know, this custom, and this mode of delivery, which, at the best, was only permissive on the part of the government.
    3. The delivery at Alexandria was perfect “ to the care of John H.. Oliphant,” as he had notified the officials that the cargo of oats, per the Lovett Peacock, was to be applied on the contract of Charles T. Baldwin, which was a contract to’ be there performed, and of which he was the agent. This was a direction by the consignees’ agent to the officials, and was by them communicated to the master of the vessel. This direction, by a transient agent of an absent consignee, amounted to a direction to receive and apply the property on that particular contract. As far as the master of the vessel was concerned, it authorized him to report to the quarter-master. His duties then ceased, and the defendants, who had forwarded this cargo as “ contract oats,”- and for government use, must be prepared for any variation from the peculiar custom and peculiar condition of things then and there existing. It was not a case to be governed by the ordinary rules of trade, for everything was under military control, and peculiar customs, rules and regulations existed. Of all these the consignees were well informed, for the law implies that they were.
    III. A ship load of oats cannot be delivered manually. If the consignee is absent, the master is bound to look for any instructions he has given. In this case the master had • been informed by the officer who controlled at that place, who had been so informed by Oliphant, to what particular purpose they were to be applied, and the consignee himself was absent. Must the carrier or must the consignee suffer for his neglect or his absence ? A similar case of a' transient consignee is that of Mayell v. Potter, (2 John. Cas. 371.) Ordinarily, in case of the absence of a consignee or in the absence of instructions, the master must wait a reasonable time, and must finally discharge the cargo, giving the best notice he can. What was a reasonable time ? Under the extraordinary condition of things at that time and place, while the emergencies of the government were great and'were well known, (especially to contractors like the defendants,) a cargo of forage was to be discharged promptly. The master of a vessel was not bound to wait at all, allowing that he had received no instructions.
    1. Oliphant was absent, according to his own evidence— forty-eight hours—Sunday being then a working day. In the absence of any instructions, the cargo was properly delivered by the master reporting to the quarter-master. Ho variation could have been effected, if Oliphant had given directions to the master to do otherwise than he did.

      2. The discharge of the cargo, after the notices and directions given by Oliphant, amounted to a delivery to the consignee named in the bill of lading. He made the officials at Alexandria his agents for the purpose of receiving the cargo, and they were entitled to consider themselves as such agents. They were justified in so acting, and the master was equally justified in his course, especially as he had no alternative.
    3. There is no doubt that delivery of the cargo must be made to the consignee named in the bill of lading, but the question is how is that delivery to be made—must it not be made to one whom he has appointed, as well as to himself ? If Oliphant had written to the master that the cargo was to be applied on the contract of Charles T. Baldwin at Alexandria, would not the master be justified, in his absence, in delivering to the officers at Alexandria for that purpose. The verbal directions were equally to be regarded.
    4. Oliphant being present when the cargo was being discharged acquiesced by declaring that the “ oats were coming out all right,” and making no protest. This is disputed by Oliphant, but the contradicting testimony is all of a negative character. The report of the referee is silent upon this point.
    5. The master could pursue no other course. He could not deliver in' any other mode to any one at Alexandria than the government officers, for the cargo was intended for the government at Alexandria. The master did not state to the quarter-master that the cargo was for him, and that he wished him to unload it. If it can be said that the government seized this cargo, the master having done nothing but report his vessel to the officers in command, as he was bound to do, the defendant must suffer and not the plaintiffs, inasmuch as the defendants were bound to know and be governed by the customs, the rules and regulations of that place at that time, and that as soon as the vessel with a cargo of forage arrived her cargo would be discharged. The delivery of the cargo must be considered as having been made, under the circumstances, to John H. Oliphant. The referee’s report on the main question in the case should therefore be set aside.
    IY. The plaintiffs were further entitled to recover damages for the detention of the vessel at New York after her hiring by the defendant. The evidence of the master, Captain Lingo, undisputed, shows that he commenced taking in the defendants’ cargo on Saturday, the 25th of October. There is no evidence that the cargo was ready before the 25th, except the testimony of Walter. On that day the vessel was employed, and if she was detained after that by reason of the default of the shipper of the cargo, or by reason of his delay in furnishing the cargo, he is liable for the time lost. That time was the working days intervening from the 29th of October to the 7th of November, viz. the 30th and 31st of October, and the 1st, 2d, 3d, 4th, 6th and 7th days of November, in all eight days. The damages are the value of her time, which is fixed by the bill of lading for demurrage, and no better rule than that agreed on by the parties can be found. The ordinary time of loading was fixed by the master at three days. The referee ought to have allowed to the plaintiffs the damages.
    YI. The following exceptions to the evidence are well taken:
    1. The defendants question to Oliphant, “were the oats delivered to you,” was objected to as involving a conclusion of law. This was the main question in the case, and involved the opinion of the witness. The referee ought to have determined this issue from the facts, and not from the opinion of the witness. Non constat but his report was founded on this improper evidence of • the defendant’s agent.
    2. The defendant’s witness, Oliphant, was permitted to < prove the contents of a telegraphic dispatch, the plaintiffs objecting. The defendants might as well have offered to prove the contents of a letter. There can be no argument about this simple rule of evidence. The defendants never proved the loss of the dispatch. Baldwin proved he had made no search for it. He directed his clerks to make some search, and they reported they had not found it. There is no attempt whatever (if it had been lost) to supply the next best evidence from the telegraph offices at New York or Washington. Johnson, the other defendant, was not called. The plaintiffs were not bound to move to strike out the testimony after the defendant’s ' failure to show the loss of the paper. The objection was a good one at the time it was taken, and if the referee still permitted the evidence, and gave the defendants the unusual right to supply the proof of the loss of the paper, it was for the defendants to look out for their own case and the effect of the erroneous ruling of the referee.
    3. The defendants’ witness, Oliphant, was permitted to prove that he had done no act, as agent for Charles T. Baldwin, except borrowing bags for him, although he had previously sworn he was his agent. The defendants thus attempted to contradict their own witness, and the referee wrongfully sustained the attempt.
    4. The question to the defendant Baldwin, “ For what purpose did you transfer this cargo of oats to Oliphant ?” was objected to as immaterial, and as involving a mental conclusion. This was an important question in the cause, and was designed to defeat the plaintiffs’ claim that the cargo was intended for the Alexandria contract. That the question involved a mere mental operation is without doubt, and evidence of intentions and designs are to be proved by the acts of the parties, and not by their declarations. The referee erred in admitting this evidence. The objection that evidence is immaterial, is good, and is ground for a reversal of a judgment when the evidence itself may affect the conclusion of the jury or referee. That was the effect of this evidence. But here the objection was distinctly made that a mental conclusion of the plaintiffs was called for.
    5. Upon reading the deposition, by commission, of the witness, Captain Stoddard, the quarter-master at Alexandria, an interrogatory, “ whether there was any other contract at Alexandria with the government upon which the cargo of the Lovett Peacock could have been applied?” and the answer thereto, was overruled, and an exception taken by the plaintiffs. The evidence was of the utmost importance, as going to show that the cargo being “ contract oats,” there was no other contract than that of Charles T. Baldwin on which, it could be received at Alexandria. The witness had charge of receiving and discharging cargoes of vessels laden with forage and consigned to Alexandria. He had charge of the forage department. He therefore had knowledge of the forage contracts, and his testimony was not hearsay. The cargo of the Lovett Peacock was composed of forage, and if the plaintiffs had shown that the cargo could not have been received on any other contract, it confirms and establishes the theory that the quarter-master was right, (with the instructions he had from Oliphant.) in receiving and applying the cargo on this contract. The testimony was material, its exclusion was injurious to the plaintiffs' case. This evidence is not supplied in any other part of the case; the fact of the contract of Charles T, Baldwin being admitted in evidence does not show that it was the only contract to which the cargo could apply.
    6. The defendants, in their cross-examination of Captain Stoddard, by an interrogatory, ask for any letters to him from the plaintiffs, or by Mm to them. In answer, he says he annexes a copy of a letter he wrote on the subject. The referee rejected the evidence on the ground that it was not the original letter, but was a copy. The witness declares that he does not know where the original is to be found. Nevertheless, the evidence called out by the- defendant is rejected. The defendants had no right to object to the copy, which had been a memorandum of the witness, and which they themselves called for. It was not the question whether it was an original but whether, if called for by the defendants, the plaintiffs were not entitled to have it in evidence. It was material as going to confirm the evidence both of Captain Stoddard and Captain Cary. The exception was well taken, as will appear by the paper itself.
    7. The exception to the evidence of conversations • about the vessel being ready to take cargo, (bearing on the question of damage,) between the witness Walter and Elwell, was well taken. Elwell, as a broker, negotiated the hiring, but had nothing to do with the lading of the vessel. His statements, therefore, did not bind the plaintiffs. Upon this ground the referee may have refused the damages for delay. The evidence was improperly admitted.

      Be Witt G. Brown, for the respondent, defendant.
    I. It will be assumed that the exceptions to the report of the referee, bring up nothing for examination before this court which deserves or would justify more than a brief consideration. The court at general term have the right to reverse the judgment of the court below, and grant a new trial upon the facts, that is, that the verdict or report is against the weight of evidence or against evidence; but it can do no more than that. It may look into the whole case and examine all the facts and arrive at a different conclusion from that arrived at by the jury, court or referee; but the court is not authorized to examine the conflicting evidence in the case upon any specific question of fact involved, and if arriving at a different conclusion from that arrived at by the court below, to reverse the judgment for that reason. (Ball v. Loomis, 29 N. Y. Rep. 412. Merrill v. Grinnell, 30 id. 594.)
    II. Upon all of the facts in the case the conclusion of the referee was correct.
    The report of the referee is not against the evidence or the weight of evidence, but is palpably in conformity to both. The referee reported in favor. of the plaintiffs for the value only of the oats, excluding interest, which is the only error apparent in the case.
    The plaintiffs were entitled, as matter of law, to interest, (Dana v. Fiedler, 2 Kern. 40; Andrews v. Durant, 18 N. Y. Rep. 496,) and the allowance of interest would have enhanced the damages, $3971.06, the interest on $23,075.88 from the commencement of this action to the date of the referee's report. The rejection of interest by the referee was nearly equivalent to confining the plaintiffs to the value of the oats at the time of their conversion, which was their lowest value at any time, viz :
    23,309^- bushels, at 85c.,........$19,813 07
    Deduct the freight,.......... 1,165 48
    $18,647 69
    Interest from Nov. 22, 1862, to Sept. 15, 1865, . 3,673 13
    Total,..............$22,320 82
    III. The objections to evidence are not well taken.
    1. The question to Oliphant “whether the oats were delivered to him P” did not call for a conclusion of law. The witness was the owner of the oats and had the hill of lading properly assigned in his possession, and went down to Alexandria on the 24th day of November, 1862, to get possession of the cargo. On his arrival he found the vessel and cargo not in possession of the master but of the quarter-master, Stoddard, who had discharged and taken away two thirds of the cargo, and was then engaged in taking out the balance, and under the circumstances the question “were the oats delivered to you” did not call for a legal conclusion but for a fact, and was equivalent to asking what became of the property, and the witness understood it in that sense, for he answers that the property was not delivered or tendered to him, although he was ready to receive, and demanded it. The question might have been slightly leading, and if objected to on that ground, would have probably been changed in form, but it was certainly competent to show what became of the oats, and that they were not delivered to the owner,, but were delivered to a stranger, and the tendency of the question was plainly to this end. At any rate, the question could not prejudice the defendants, for the witness followed up this answer by detailing all the facts minutely which bore upon the question of the delivery, and he states that the defendant Lingo informed him that the two thirds of the cargo already taken out had been taken to Acquia creek; and the witness says he did not know what became of the balance ; so that the witness’ knowledge was exhausted, and that is all that was required.
    2. The exception to the proof of the contents of a telegram was not well founded. The proof already given showed' that the respondent went to Washington to procure contracts for forage with the government. That before going he made an arrangement with Baldwin & Johnson to furnish him, upon requisition, with such forage as he might contract to deliver. That on the 11th day of November, 1862, he made a contract with Col. Eucker for the delivery of fifty thousand bushels of "oats ; that on the same day he telegraphed Baldwin & J ohnson that he had secured such a contract and required the oats at' once. Upon the receipt of this dispatch, Baldwin & Johnson assigned the oats in question, and forwarded the bill of lading to the respondent. The instructions of the respondent to Baldwin & Johnson were therefore a part of the res gestes and were competent. No objection was taken that the loss of the dispatch was not proved, and the proposition was only to prove the contents then, and the loss afterwards ; and if proof of loss was not subsequently given, the appellants should have moved to strike out this evidence of the contents of the dispatch. But the loss of the dispatch was afterwards fully shown.
    3. There is no force in the exception taken to disproving Oliphant’s agency for C. T. Baldwin. The witness had admitted in his. cross-examination that he had been at one time the agent of Charles T. Baldwin for the delivery of oats at Alexandria, and that he had stated that fact to Cary, the forage-master. Stoddard had testified, upon commission, on the 6th day of February, 1864, that the respondent had been introduced to him as C. T. Baldwin’s agent, and that he professed to be acting as such agent, it was entirely competent to show the real relation which existed between the respondent and C. T. Baldwin, and to show that although the respondent might have had a power of attorney from C. T. Baldwin to act as his agent, and so informed Stoddard, yet in point of fact he had done no. act as such agent, and was acting solely as a principal in the performance of his own contracts through Col. Bucker. The theory of the appellant was that the respondent was only the agent of C. T. Baldwin, and as the cargo in question was applied by the government upon C. T. Baldwin’s contracts, that therefore the appellants had made a delivery under their bill of lading. It was competent therefore to show that the respondent was not such agent and had never acted as such.
    4. The testimony in answer to a question as to Baldwin’s purpose in transferring the cargo to Oliphant could not prejudice the appellants. The answer was not called for by the questions, which were perfectly competent. The witness had ■proved the arrangement between him and the respondent to furnish the latter with oats upon his requisition, and that he had received a requisition from the respondent, and directed Walter to transfer the oats in question, and he was then asked for what purpose the transfer was made. The question was proper and the answer obviously expected was “for the purpose of carrying out the arrangement with Oliphant.” If that had been the form of the answer, no point would probably have been made; but it is plain, I think, that that was the answer expected, and the most fitting one to the question. As the question only was objected to, .and that was a proper one, the decision of the referee will not be disturbed, The objection that the question was immaterial is not available; such an objection is not an objection at all, for the' court has a discretion to receive any evidence, which at the time of taking it is purely immaterial. This evidence would not do any harm, and therefore the court will not reverse the judgment even though it come to the conclusion that it was immaterial. ■(Woodruff, v. McGrath, 32 N. Y. Rep. 255. People v. Branshy, Id. 525. Smith v. Paton, 31 id. 66.)
    5. There is no force in the exception excluding the question to Capt. Stoddard, whether there was any other contract upon which the cargo could have been applied, and the objection to the evidence was proper.

      {a.) The witness Stoddard, was assistant quarter-master at Alexandria, having the charge of receiving and discharging cargoes of vessels there, but made no contracts. They were made by Capt. Ferguson, and the witness had no possession or control of them, and he speaks of them only from hearsay or recollection. The question called for the absolute statement of a fact of which he could have no knowledge except by conjecture ; not merely for proof of any other contracts than those of C. T. Baldwin, “ but any other contracts between the government of the United States or its officers.” No such contract had been or could be proved. The question also called for the proof of “any other contract,” &c. upon which the cargo of the Peacock could or would have been received or
      delivered. It was certainly a matter of opinion, or belief with the witness, what “ could or would ” have been done with the cargo under the circumstances. If he had any knowledge upon the subject, it must have been information and hearsay only. The question did not call for proof of any fact, of which the witness could have any absolute knowledge, from its very nature.
    (6.) The question called for contracts, on which the cargo “ could or would have been received or delivered at the port of Alexandria.” The witness was charged with the duty of “receiving” cargoes; the master of the vessel (the defendant Lingo) was ■ charged with the duty of delivering this cargo. How could the witness testify, as to what contracts or under what circumstances, the defendant Lingo would deliver the oats ? It must be a matter of mere hearsay or conjecture on the part of the witness and not the statement of a fact. Lingo’s testimony, given at great length, had already been put in evidence by the defendants, of whom he is one. He was master of the schooner, and made the delivery, such as it was, of the oats. He does not pretend any where in his evidence he ever heard of the “C. T. Baldwin" contracts, or that he actually delivered upon them. Upon his arrival at Alexandria, he turned the cargo over to the assistant quarter-master and said he thought it was “ all right.” The proof showed clearly the existence of a contract between Col. Rucker and the respondent, for oats deliverable at Washington, and that this cargo was consigned to the respondent at Alexandria, where there were wharves not used by the government, at which individuals were allowed to receive property, and the respondent was going down to Alexandria every day, to get these oats upon their arrival. How then could Stoddard say, except upon hearsay, that Lingo could not or would not have delivered the oats to the respondent under the circumstances ?
    (c.) But if the ruling of the referee was erroneous the court will not disturb the judgment, for the reason, that the evidence could do the appellants no good. The court never disturbs a judgment on the ground that the court below improperly received "harmless evidence. (Woodruff v. McGrath, 32 N. Y. Rep. 255. People v. Bransby, Id. 525. Smith v. Paton, 31 id. 66.) And the rule is the same, where the court improperly excludes the evidence, if it is documentary, as in this case fully appears in the case; for the court can equally see, that if admitted, it would have done no good, and therefore its rejection has not prejudiced the appellants.
    (cZ.) The respondent claimed to recover, because the appellants had not complied with their contract as expressed in the bill of lading. The defendants delivered upon the O. T. Baldwin contracts, and contended they were justified in so doing. These contracts were proved and their contents admitted; the appellants got the benefit of all that was done in the way of a delivery and their case would not be at all strengthened,by showing the non-existence of other contracts.
    6. The answer excluded, of what purports to be a copy of a letter written by the witness (Stoddard) to the appellant Lingo, and a declaration of the witness that he believes the contents of the original letter to be true, seems to have been objected to upon two grounds : 1st. That it was not responsive. 2d. That the original letter was not shown to be lost. The referee excluded the copy letter from evidence, under the objection that the original was not shown to be lost. This was correct, because there was no proof of the loss of, or of any search for the original letter, which was written by the witness to one of the appellants in the action, the copy of which had been made and sent by their attorney to the commissioner, to exhibit to the witness at the time of taking his deposition, and the original of which instead of being lost was probably in court.
    7. The exceptions to the conversation between the witness Walter, and Elwell, the broker, is not well taken.

      (a.) The schooner was chartered through the broker (Elwell) and he reported her to the respondents as ready to receive the cargo. All the negotiations in reference to the charter took place with Elwell, and the respondents did not know till the bill of lading was signed, who the owners were. Elwell was therefore the agent of and. represented the owners, and conversation in reference to the chartering and loading of the schooner, between Elwell and the respondent, was competent evidence.
    (5.) It was entirely competent, to show the want of readiness on the part of the schooner to receive the oats on board, and to show that a quantity of oats which had been sent along side the schooner and intended to be placed on board, was in fact sent away, because the schooner was not ready to receive them ; whether the proof established this fact was a question for the referee. It was competent, to show that Walter ordered the boat containing the oats elsewhere, and if the respondent did not show that such order was obeyed, the proof would amount to nothing.
    (c.) The testimony could not possibly have harmed the appellants, as it related exclusively to the question of demur-rage, which the appellants abandoned upon the trial. Neither the proofs, or pleadings, nor both, established the claim to demurrage. The complaint did not allege, what was the ordinary time for loading the schooner, or that she was detained in loading beyond the ordinary period. The proof did not show, what was the value of the schooner per day (if any) during any delay in loading. The attention of the appellants was called to this on the trial, and they neither applied to amend the complaint nor gave the lacking evidence, and the question of demurrage is not properly in the case, and the evidence relating thereto, is of no consequence.
    IV. The question of demurrage is subsidiary to that of freight, and stands or falls with it. Only one contract was made with the appellants to receive, transport and deliver the cargo; if the appellants failed to make delivery, they have not earned their freight, and are not entitled to charge for any detention at New York. They must show a performance on their part, of the contract, before they can receive any thing for its breach by the respondents.
    V. The question of demurrage was settled by the parties before the schooner left New York. ■ The appellants, according to the evidence, waited in New York three days after the schooner was loaded, and refused to depart until the question of demurrage was settled. The parties talked the matter over; the respondents refused to allow demurrage, on the ground that the appellants had detained them as much as they had been detained themselves, and the respondents threatened to libel the vessel if the master did not sail; the appellants thereupon, without any protest on their part, went to sea.
    1. This amounted to an implied agreement that they were not entitled to demurrage, and was a waiver of the claim, if they were so entitled. The evidence did not show that the appellants were delayed at New York, the. preponderance of the testimony being with the respondents on that question ; if there had been any detention at New York, the respondents were entitled, as matter of law, to meet it by the time gained at Alexandria, by the appellants' precipitate delivery contrary to the bill of lading, which entitled the respondents there to six working days to discharge.
    2. The question of demurrage is one of indemnity. If the respondents had the right by their contract to detain the vessel three days (the customary time) at New York, and six days (by the bill of lading) at Alexandria, and detained the vessel, in fact, six days at New York, and three at Alexandria, the appellants have no right to complain, and especially would this be the case, where, as in this case, the premature delivery was not to the consignee, or at his request, but to a stranger, and was the act wholly of the carrier.
    VI. Upon the merits of this case no defense was shown to the action. The proof on the part of the appellants hardly amounted to an attempted defense. The respondent was the owner by assignment of the bill of lading of the cargo of oats, and the bill of lading also consigned the cargo to him.
    1. There was no proof given on the part of the appellants, and none was attempted, for the purpose of showing either that the oats were in fact delivered to the respondent, or that he derived any benefit from them. But instead, the evidence on that side, was mainly directed to showing that the appellants had not been guilty of any fault in delivering as they had done, and were innocent of any wrong intention. Now, assuming this to be true, it constitutes no defense to the action. The appellants were admitted to be common carriers, and as such, contracted to transport and deliver to the respondent at Alexandria the oats in question.
    2. But their liability does not spring from the express contract evidenced by the bill of lading. On the contrary, it exists independently of it. It is imposed by the law, and has its foundation in public policy. Both by the civil and the common law, carriers are liable as insurers of the property entrusted to their care; and irrespective of any question of fault or negligence on their part, when they fail to deliver, they can only absolve themselves from liability, by showing that their failure arose from the act of Grod or the public enemies. A few cases will show how strict the courts have been in declaring their liabilty. In Forward v. Pittard, (1 T. R. 27;) Miller v. Steam Nav. Co., (10 N. Y. Rep. 431;) Goold v. Chapin, (10 Barb. 612, &c.) they were made liable for accidental fires. In Wing v. The N. Y. and Frie R. R. Co., (1 Hilton, 235,) for freezing. In Moses v. Sun Mutual Ins. Co., (1 Duer, 159,) for goods consumed by passengers. In Watkinson v. Laughton, (8 John. 218,) for embezzlement. In Kemp v. Coughtry, (11 John. 107,) for theft.
   By the Court,

Robertson, Ch. J.

The first question presented'in this action is whether the plaintiffs performed their contract for the delivery of the cargo in question,- according to general rules of law regulating such delivery. If they did they were entitled to recover. If they did not, a further investigation may become necessary, to ascertain if the peculiar facts of the case warrant a deviation from such general rules, by admitting a delivery out of the ordinary mode.

By the terms of the bill of lading the merchandise was deliverable at Alexandria to the defendants or their assigns. Mr. Oliphant being recognized as the agent to receive it. By the assignment of the bill of lading to him, he became entitled to receive it, either in his own right, or as consignee. It was actually delivered to a quarter-master of the United States army (Captain Stoddard) for the • use of whom it was ultimately designed, without any direct • authority, for that purpose, from the owners or consignee, and principally during the absence of such consignee.

The delivery of merchandise by its carriers, at the end of the route or voyage, seems to be governed by different rules, according to the nature of the transportation. If it comes from a foreign country, it seems to be sufficient that it should be landed, when, where and how the custom of the port, at. which it arrives, prescribes (Abb. on Ship. 463, 5th Am. ed. Hyde v. Trent Nav. Co., 5 T. R. 389, per Buller, J.) when such custom has been so long acquiesced in, as to be supposed to form part of the contract. (Rushforth v. Hadfield, 6 East, 519, per Ld. Ellenborough and Grose, J.) If in the United States, generally by landing it at the usual place and giving notice to the consignee, (Story on Bailm. § 545. 2 Kent’s Com. 604. Chichering v. Fowler, 4 Pick. 371,) although even that does not seem to be the universal rule. (Hemphill v. Chenie, 6 Watts & S. 62. Galloway v. Hughes, 1 Bailey, S. C. 553. Blin v. Mayo, 10 Verm. Rep. 56.) Such notice, when permitted to take the place of actual delivery, must be a reasonable one. (Packard v. Getman, 6 Cowen, 757. Quiggin v. Duff, 1 Mees. & Welsh. 174. Warded, v. Mourillyan, 2 Esp. 693. Cope v. Cordova, 1 Rawle, 203. Scholes v. Ackerland, 11 Ill. R. 474. Crawford v. Clark, 15 id. 561,) and its publication in a newspaper is not sufficient. (Packard v. Brodier, 2 Kent’s Com. 605, 5th ed. n. p.) But it may be entirely dispensed, with by a custom of the port, (Gibson v. Culver, 17 Wend. 305. Farmers and Mechanics’ Bank v. Champlain Transportation Co., 16 Verm. Rep. 52,) which is also controlling in regard to the place of delivery. (Gatliffe v. Bourne, 4 Bing. N. R. 314. Chichering v. Fowler, ubi sup.) Although such landing and notice may be a substitute for actual delivery to a consignee, they will not justify the abandonment of the goods, or their delivery to a stranger, (Ostrander v. Brown, 15 John. 39,) at least until after the allowance of a reasonable time to the consignee to remove them. (Price v. Powell, 3 N. Y. Rep. 322.) Generally a carrier of goods from abroad is bound to retain them under his care, (Id.) unless the rule, which prevails in regard to goods transported through the same country, when a consignor is absent, dead or refuses to receive them, (but only in such cases, (Humphreys v. Reed, 6 Wheat. 435,) of entrusting them to a responsible warehouseman as bailee of the consignor, (Fisk v. Newton, 1 Denio, 46. Gibson v. Culver, 17 Wend. 305,) is to be extended to imported goods. The only excuse for not delivering or landing goods, seems to be the exercise of superior lawful authority preventing it. (Evans v. Hutton, 5 Scott, N. R. 670.) But in the case of merchandise transported through the same country, the legality of such authority must be proved. (Id.) Similar rules, however, do not govern domestic transportation or on the great inland lakes or coasting trade of this country. The rule in regard to domestic carriers is, that goods transported by them must be delivered to the consignee, and until so delivered remain at the risk of the carrier as such, (Storr v. Crowley, 1 McClel. & T. 136; Stephenson v. Hart, 4 Bing. 476; Garnett v. Willan, 5 B. & Ald. 53; Bodenham v. Bennett, 4 Paine, 34. Duff v. Budd, 3 Brod. & B. 177; Birkett v. Willan, 2 Barn. & Ald. 356; Gibson v Culver, 17 Wend. 305,) except that he may notify the consignees of their arrival, and in case of refusal to take them, store them for their benefit. (Gibson v. Culver, Fisk v. Newton, ubi sup.) A delivery even to a porter of an inn, for a lodger, not being considered sufficient. (Hyde v. Trent Nav. Co. ubi sup. per Buller, Ashhurst and Grose, JJ. Ld. Kenyon contra.)

In this case the plaintiffs did not comply with any of such ordinary rules for the delivery of goods, except landing the cargo at a wharf, where similar articles for the use of the government were landed. The master of the vessel was even informed that the consignee was frequently at the quartermaster’s office and had been there not long previously, and he finally saw him. If the plaintiffs therefore performed their part of t]he contract so as to entitle them to compensation, it must be by being legally excused from following such general rules for the delivery of merchandise.

Ho authority seems to have been given in this case to the master of the vessel to deliver the cargo in question to the government generally, so as to leave it to decide, to what contract they would apply it, or empowering him to determine, upon what contract the cargo should so be delivered to the officers of the United States government, whether upon that made in the name of Charles T. Baldwin, or that in the name of J. H. Oliphant, Whether the same parties were interested in both contracts or not, they had a right to determine for themselves, on which one they would deliver the cargo in question or to refuse to deliver it at all, unless it was accepted on that, in performance of which, they tendered it. I do not perceive that the plaintiffs or the master had any thing to do with any intended omission to comply with one contract, because it was less profitable than the other. That was a matter resting entirely with the parties interested.

I do not see how the obtaining of a certificate from the Major Quarter Master at Hew York, (Van Vliet,) that the cargo in question was “contract oats,” upon which a clearance was obtained at that port, at all affects the question of delivery. Even if it did so, there was nothing to prevent the consignee from receiving the cargo, so as to enable him to elect on ivhat contract he would deliver them. If the master of the vessel, (Lingo,) who is one of the plaintiffs, in order to obtain a clearance, made any oath, as to the cargo being government stores or a government cargo, inconsistent with any right of the owners or consignees under the bill of lading, it was the act of the plaintiffs and their agent, and could not confer any new authority on them, to deliver the cargo directly to the government instead of the consignees, or deprive the defendant of any right. The only intervention of' any one on behalf of the defendant, to procure the clearance, seems to have been that of their clerk, (Walters,) who, (as the clerk of the agent of the plaintiffs, Mills, testifies,) told the deputy collector of the port, (Embree,) either that it was a government cargo, or intended for the government. Which of course was true, whether Oliphant did "not or did give to the defendants the orders which he stated he gave for its purchase, or the defendants bought it or not on such orders, as they testify they did. It might have been applied on the more favorable contract, if the plaintiffs’ agent had not prevented such application by placing it generally in the hands of officers of the government without such application, and thus preventing the defendant or Oliphant from delivering it to the particular officer, (Ool. Rucker,) with whom the last contract was made. The possible acknowledgment by government of a liability under the second contract, or any liability of its officers for a conversion of the cargo without the consent of the owners or consignees, does not absolve the plaintiffs from liability for not delivering according to the contract. At all events, they cannot recover freight for goods not delivered according to such contract.

Nor am I able to understand, how the question is at all affected either by the agency of Oliphant for O. T. Baldwin or his stating to a clerk of the quarter-master at Alexandria, (Cary,) that the cargo in question was intended to be applied to Baldwin’s contract. For to the quarter-master, (Stoddard,) he only made the general declaration, that oats were being shipped to fill up such prior contracts, which it seems they were, until the defendants changed the purpose of the shipment by turning the cargo over to Oliphant, to enable him to fulfill his contract. The party to whom the plaintiffs thus agreed to deliver the oats was entitled to their possession, to do with them what he thought proper, whatever his statement of his intention may have been. .

I have not therefore found any materials in this case, from which to spell out a contract by the defendant with the plaintiffs, to permit the latter to perform their contract to deliver the cargo in question to the former or their assigns or Oliphant, by delivering it to a quarter-master at Alexandria, for the benefit of the government, to .be applied on the C. T. Baldwin contract, or any other they thought proper, to which they had a right to apply it. If the master could not have landed his cargo therefore upon any other condition, it was his duty to have returned to the port of departure with it. There was, therefore, no such delivery as entitles the plaintiffs to recover any freight.

Hone of the exceptions to evidence were well taken. The question put to Oliphant, whether the oats were ever delivered to him, was not one of law, hut of fact, and so he understood and answered it. If it was intended tó call for the witness's interpretation of the legal meaning of “ delivery,” it was not answered. A direction for a telegraphic dispatch at the place from whence it is sent, is not a written instrument, any more than a written memorandum of any message to be delivered orally, or re-written by the messenger. That in ■ question was merely one step in a process, by which an order for the purchase of oats was delivered to the defendants. The loss of the telegram received in pursuance thereof, by the defendant Baldwin, was proved by him. If such direction is to be considered as identical with the memorandum furnished at the opposite end of the electric wire, the defect was therefore cured. I do not see why the defendants were not at liberty to prove, that Oliphant so little regarded his agency for C. T. Baldwin, as to have done no act under his appointment . as such except borrowing bags for him, if that were such ; so as to repel any. presumption of acting as such agent in ordering or selling the cargo in question. There was no contradiction in that to what he had already testified. The purpose for which the defendant made the transfer of the cargo in question by the indorsement on the bill of lading, was material to repel any inference which the plaintiffs struggled to furnish materials for making, that the oats were intended to be delivered in satisfaction of the “O. T. Baldwin” contract. Whether such purpose was merely a matter of conjecture of the witness, or was a part of some understanding between the parties, did not appear ; it might equally well have been the latter. The objection was not put upon that ground, so as to enable the counsel to remould his question, and was, therefore, properly overruled. No effort was even made on cross-examination, to ascertain how the witness knew what the purpose was. The question put to the quarter-master at Alexandria, whether' there was any other contract at Alexandria with O. T. Baldwin, except that on which he applied the cargo, was entirely immaterial, as no direction had been given to apply the cargo to any such contract. It would, besides, be a question of law, after proof of the existence and contents of such contract, whether such a cargo could be applied on them or not.

The copy of the letter of the witness, Stoddard, set out as his answer to a question, calling upon him to annex letters to him - and his answers thereto, was properly excluded, as the original was not produced to the commissioner on his examination. The witness did not furnish the original letter of' which it purported to be a copy, and which he was called- upon to annex, so that he left thereby the correspondence incomplete. He testified, also, that he had not compared the copy with the origina], and the defendants were not bound to rely on his recollection of the contents.

The ship-broker, through whom the chartering of the vessel in question was negotiated, was the proper person for the clerk of the defendants, (Walters,) to apply to, in reference to any delay. He had reported her as in a fit condition for loading, and the defendants found she was not. There was no evidence that his duties as mutual agent of the parties had ended. No other contract had yet been signed, and the bill of lading was not, until the cargo was on board. The whole conversation, whose admission is complained of, consisted of his informing the defendant that the ship had not discharged her cargo, but would be ready next day, and the objection seems not to have been taken until after it was introduced.

It is to be presumed that the referee found against any facts which tended to establish the performance by the plaintiffs of their contract, or any excuse for non-performance which the evidence justified. He found, however, that the plaintiffs did not deliver the cargo in question, as required hy the hill of lading, either to the defendants or Oliphant, at Alexandria or elsewhere, which fully sustains the judgment. And there being no errors either in the rules of law applied, or the admission or rejection of evidence, the judgment must he affirmed, with costs.


source: Caselaw Access Project

author: Robertson, Ch. J. Mokell, J.

license: Public Domain

text:
    Theodore R. B. DeGroot, plaintiff and respondent, vs. The Fulton Fire Insurance Company, defendants and appellants.
    1. In an action upon a policy of insurance on a stock of clothing, evidence to show the value of goods sold to a customer, and selected out of the best of the stock, a day or two before the fire, is not admissible as a basis for estimating the value of the rest, where there is no proof that the goods were the same in any particular, or on the average.
    2. In an action upon a policy of insurance for a loss by fire of a stock of goods insured, when the original bills of purchases of the assured are in the possession of the insurers, copies of entries in'a blotter, of goods bought, made from original bills of purchases from time to time, as they were paid, and of payments thereon, as they occurred, made by a witness, or in his presence, and of cash paid to workmen for wages, compared with the books of such workmen, from time to time, when paid, if the witness who made such copies testifies that they are correct, and that all the money entered therein as paid, was paid, are admissible in evidence.
    3. An appraisement of damage, by perils insured against, to a stock of merchandise insured, made by two appraisers appointed by an instrument in writing signed by the assured and the agents of the insurers, authorizing them and any third person to be selected by them, to appraise and estimate the damage to such goods, at the true cash value, when the appraisement and estimate of any two of them is to be binding on the parties, is admissible in evidence; particularly where the sound value of the goods, and the damage to them is required by the policy of insurance sued upon, to be asceijfained by the estimate and appraisal of the value of each article by appraisers to be mutually agreed upon by the insurers and assured.
    4. The attendance of the secretary of the defendants, one of the insurers of a stock of merchandise, at a meeting of representatives of all the insurers of the same stock, after notice of the loss, at which the assured was notified that they would appoint a committee to “ settle ” his loss, and the presiding by the president of such defendants, over a second meeting of such representatives (only one being absent,) at which such committee was appointed, are enough to bind the defendants by an appraisement of damage made by two appraisers, appointed in writing, by such committee and the assured (whom they induced to join in such appointment,) as being within the provision in the policy of insurance for the estimate of damage and value by appraisers mutually appointed by the insurers and assured.
    6. The value of articles insured may he determined, by appraisers appointed under a policy of insurance merely to estimate the damage by a peril insured against, in such mode as they think proper. They are not bound by the same rules of strict judicial investigation as arbitrators.
    6. Questions to which no exceptions are taken, exceptions by the prevailing party, and evidence not necessary to sustain the exceptions of the losing party, are improperly inserted in a case made to be annexed to, or inserted in, a judgment roll for the purpose of an appeal.
    (Before Robertson, Ch. J., and Monbll and Garvin, JJ.)
    Heard May 15,1866;
    decided October 7, 1867.
    This was an action upon a policy of insurance, issued by the defendants to the plaintiff, bearing date June 10, 1861, by which they insured .the stock of ready-made clothing and materials of the plaintiff, in the store known as Nos. 84, 86 and 88 Fulton street, and 47 and 49 Gold street, New York, for one year, against loss and damage by fire, to the amount of $2500. On the 21st of March, 1862, a fire occurred in said store, and damages were sustained to a large amount. The plaintiff furnished the necessary preliminary proofs, and the insurance companies interested in the loss appointed a committee to investigate the loss, who agreed with the plaintiff to submit the loss to two appraisers, one of whom was selected by the plaintiff, and one by the defendants. The appraisers thus selected made a full appraisal of all the goods damaged by fire and water, but did not appraise or ascertain the value of the goods totally consumed by fire, but did ascertain that the total amount of loss exceeded the whole amount of insurance. The plaintiff then, on the call of the companies interested, furnished from his books the account of stock taken in February preceding the fire, and amount of purchases and sales made after the account of stock was taken and before- the fire, as a means of ascertaining the kind, quality, and value of the goods totally consumed.
    The defendants still declining to pay the damages sustained, this action was commenced, and after issue joined, was referred to a referee to hear and determine, who found all the issues of fact in favor of the plaintiff, and assessed his damages at $3005.98. The referee found, as matter of fact, that the goods, &c. insured, were without the fraud, negligence, fault or misconduct of the plaintiff; destroyed and damaged by fire. That the total amount of insurance thereon was $12,500. That due and sufficient proof of loss and interest, according to the policy, was furnished by the plaintiff, and that he fully performed on his part. That the total damage by the fire was $12,545.03, and that the defendants were liable on their policy to the amount of $2500 and interest.

      John Owen, for the defendants, appellants.

      L. JS. Ohatfield, for the plaintiff, respondent.
   By the Court,

Robertson, Ch. J.

The main subjects of exceptions on the trial in this case were : (1.) Evidence of the value of some goods bought by Warren of the plaintiff before the fire. (2.) The admission of a book of entries of the plaintiff’s purchases in evidence. (3.) The admission of an appraisal (made by Messrs. Douglas and Van Saun) in evidence. (4.) Evidence of the acts of (Messrs. Boyd & Fellows, as) a committee of the underwriters. There are isolated questions excepted to, to be considered afterwards.

I cannot perceive how the value of the Warren purchase could form any basis for estimating the value of the rest of the stock. Articles of clothing, of the kind in question, are not like grains of wheat, so alike, unless they are all made from similar materials, and in a similar way, that a few can be taken as samples of the rest. The questions put to Warren, and excepted to, were, Whether he endeavored to find purchasers ? What was the best offer he got, and for what amount he sold the goods ? Those put to the purchaser, (Doland,) and so excepted to; were What he gave for such goods, and what was the fair cash value of them when he bought them ? Did they bring a fair value at auction ? and To what did the account of sales amount ? These questions plainly referred to the whole quantity sold, and not to separate articles. But if they did not, and had been as to the value of specific articles, they were inadmissible. The goods so purchased consisted of one hundred and seventy-six coats, twenty-one overcoats, ninety-three pairs of pantaloons and forty-nine vests, and were taken in exchange for a house, valued at $2000. Mr. Douglas, the person employed by Warren to select them, says he took them by their selling marks, which generally were at a large profit, and selected them for the western market, as directed by Warren. Indeed, he took all the fine cloth coats and pantaloons he could find, some being frockcoats, and generally selected the most saleable articles. Doland said there were some fine overcoats among them. Upon looking over the schedules of goods remaining unconsumed, I cannot perceive how goods so purchased and selected, could be samples of the stock, or aid in determining its value, any more than some part of a house could fix what it was worth. There was no evidence that the goods were the same in any particular, or on the average, and I think the evidence was properly excluded.

In regard to the admission of the book of entries of the plaintiff's purchases. The plaintiff's father, (W. A. De-Groot,) upon cross-examination, testified to the accuracy of the entries in such book, as copied from a blotter, entries in which he compared with the original bills as they were paid ; that he had handed the original bills to Messrs. Boyd and Fellows, who acted for the insurance companies, who never returned them ; and that he knew of the accuracy of the amount paid, entered in such book, by paying out a portion himself, seeing the other portion paid by others, making entries of all he paid, or seeing the plaintiff make them, and comparing the entries with those in workmen’s books of cash paid, and a cash book of cash on hand, which was counted. He further stated, on such cross-examination, that he knew the account of purchases, as stated in that book, was correct, and that the money was paid there as charged. The counsel for the de-- ■ fendants first objected to 'the admission of such book or entries in evidence, because it was secondary and not original entries, and subsequently excepted to its admission. There does not seem to have been any objection taken, upon the ground that no proof had been offered of any excuse for non-production of the original; nor did such book purport to be copies of any bills. The plaintiff’s father merely used the bills of purchases as memoranda to guide him in making entries, and I cannot perceive any reason why such use of them, while the facts were fresh in his memory, in order to be perfectly accurate as to amounts, would not make the entries in the books original memoranda, available as an artificial memory. Moreover, Messrs. Boyd and Fellows were officers of insurance companies who were underwriters on the same stock, acting in concert, and had been appointed a committee on behalf of all of them, to investigate the loss. This virtually traced the bills into the hands of the defendants’ agents, and authorized the plaintiff to give secondary evidence of their contents if necessary, but, in fact, they were only referred to as memoranda of amounts paid. I think the book was properly admissible in evidence.

The appraisal by Messrs. Douglas and Van Saun was received by the referee as evidence to show the amount of their appraisal, but not as conclusive evidence of the amount of damage, which he explained to mean as being, with the testimony of the appraisers, competent evidence for the plaintiff of the amount of damage, but subject to be contradicted by either party. The policy of insurance in question provided by its ninth condition, that in case of a partial damage to property, after its being put in as good order as the nature of the case will admit, the articles assorted and arranged according to their kinds, and the damaged separated from the undamaged, an inventory should be furnished to the underwriters of the whole, naming the quantity and cost of each article, and that the amount of sound value and damage, should be ascertained by the examination and appraisal of each article by disinterested appraisers mutually agreed upon, and until such appraisal, the loss should not be payable. And such policy also provided that the true cash value of the property should he deemed to be such as it might cost to replace it.

Mr. Boyd, an agent of one of the- insurance companies, (The Unity,) who had insured the premises in question and professing to act for all, and Mr. Fellows as secretary of one, (The Rutgers,) professing to act for others, signed an instrument in writing together with the plaintiff, agreeing that Messrs. Van Saun and Douglas, with a third person to be appointed by them, should appraise and estimate at the true cash value, the damage by fire and water to the property insured, and that the appraisement and estimate of any two of them in writing as to the amount of such damage should be binding on both parties, without reference to any other matters of difference between them.

The evidence of the authority of Messrs. Boyd and Fellows to appoint appraisers of the damage by the fire to the undistroyed goods of the plaintiff, on the trial, appears to me sufficient to make their appraisal binding on the defendants. The acts of their president and secretary were admitted to be binding on them. Notices had been sent on behalf of the plaintiff to all the insurers immediately after the fire, of the loss, and representatives from them collected at the scene of it, including the secretary of the defendants. They informed the agent of the plaintiffs (W. H. DeG-root,) they should appoint a committee to “ settle ” the loss. All of them except one,, (The Montauk,) afterwards had a meeting at the office of one of the companies, (The Unity,) at which the president of the defendants presided and remained until it broke up, and at which a committee, consisting of Messrs. Boyd and Fellows, were appointed ' to investigate the loss, the presiding officer himself putting the question. After the appointment of the appraisers, (Douglas and Van Saun,) by Boyd and Fellows and before any appraisal, and after the plaintiff had submitted his proofs of loss, the representatives of the companies, including the secretary of the defendants again met, and after a report from Messrs. Boyd and Fellows as to the loss and a submission of the plaintiff’s proofs, it was resolved that the plaintiff'should be required to furnish,additional proofs, and the secretary of the defendants, (Rankin,) was substituted on the committee for Mr. Boyd, who was about to go to Europe. Boyd and Fellows superintended the appraisement, after inducing the plaintiff to sign the authority for it, and the defendants paid their share of the compensation of the appraiser appointed by the companies, (Van Saun.) This concert of action among all the underwriters, in which the defendants took such part, considering the obligation of the plaintiff under the policy, to consent to the appointment of joint appraisers of the damage and sound value, before he could recover, particularly as it was not required to be. in writing, was sufficient to constitute Messrs. Douglas and Van Saun appraisers under such condition of the policy, and make their appraisement admissible in evidence. It was not received as conclusive, but of that the defendants could not complain.

How far the evidence introduced to falsify such appraisement should prevail was a matter for the referee to decide. Such appraisers were at liberty to arrive at a conclusion in regard to the valué of the articles they were called upon to estimate, in such way as they thought proper ; they were not bound to the strict judicial investigation of an arbitration. (Elmendorf v. Harris, 5 Wend. 521, and n. p. 522. Garr v. Gomez, 9 id. 649, 661. Harris v. Bradshaw, 18 John. 26. Morton v. Cameron, 3 Rob. 189.) Whether such appraisers fully executed all their powers or not, the plaintiff was not responsible for their short coming in that respect. They did, however, estimate both the sound value and damage, and specified the aggregate of both in their report. The referee may or may not have rejected such estimate as the basis of any computation, as nothing appears either way in his report, and it must be presumed that he found as to that, in such manner as may be necessary to sustain his report. That is a question entirely distinct frbm the admissibility of the appraisal as evidence.

As it thus appears, there was evidence also before the referee of the appointment of Messrs. Boyd and Fellows as a committee, after notifying the plaintiffs of such intention by the defendants, to investigate the loss and report; the exceptions taken to inquiries as to their acts were properly overruled. The testimony of the plaintiffs’ agent (W. H. DeGroot) of the notification by such companies, of their intention to appoint such a committee to settle the loss, was important, because he was induced to deal with the committee afterwards on that basis, and it corroborated the evidence of the fact of the defendants having joined in the appointment, which they endeavored to contradict by the testimony of their president' and secretary. Any objection to such testimony was properly overruled, and such overruling seems to have been acquiesced in, as no exception was taken.

From the subsequent interrogatories put to the agent of one of the underwriters, (Pierrepont,) and another of the officers of the same company, (Boyd,) it appeared that the date of a settlement made by such company was material either in fixing the cotemporaneousness, or successiveness of various occurrences, or refreshing their memory in reference thereto. The question put to Pierrepont, as to the date of such settlement, was, therefore, proper. A material question had also been raised as to, whether the plaintiff’s proofs of loss were produced and a demand resolved on for further proofs, at the first or second meeting of the underwriters, and whether Mr. Boyd was still on their committee, when such further proofs were produced. Which Mr. Boyd was enabled to solve, on an examination of him by the counsel for the defendants, by reference to the date of such settlement, whereby the defendants waived their objection to such testimony. (Westlake v. St. Lawrence Co. Mut. Insurance Co., 14 Barb. 206.)

Whatever suspicions the testimony of the fire patrol and fire marshal might raise as to the quantity of goods destroyed, they are set at rest by the finding of the referee, on all the evidence, having been met by the testimony of several employees of the plaintiff, and his proofs of loss which were agreed to be admitted as evidence in chief. It was not impossible that the loss might have been the work of both burglary and incendiarism. Every facility appears to have been afforded by the plaintiff for investigating the nature and extent of the loss, and it is not probable that any new light could be thrown on the controversy by a new trial. The exceptions taken were of a highly technical, if not captious character, and the case seems to have been made with a view of imposing as much labor as possible on the court in investigating it. Questions to which no exceptions were taken, and exceptions of the plaintiff, as well as a great deal of evidence having no bearing on questions raised by the exceptions of the defendants, contrary to the 2d subdivision of the 264th section of the Code of Procedure are introduced, thus increasing the voluminousness of the case, which has no index.

The judgment must, therefore, be affirmed, with costs.

Mokell, J.

(dissenting.) The competency of the appraisal made by Douglass and Van Saun, as evidence of damage, depends upon the sufficiency of the submission. The submission is signed by Boyd & Fellows, “ committee on behalf of the several companies.” There is some evidence that the defendants assented to and united in the appointment of a committee, but I am unable to find any evidence of an authority to such committee to appoint appraisers, and by a written submission to make their award binding upon the defendants, The plaintiff testified that Mr. Rankin, the defendants’ secretary, said “ they should appoint a committee to settle the loss.” Boyd, one of the committee, said he was informed that Mr. Fellows and himself had been appointed “'to investigate the loss;” Mr. Rankin said the committee were to “ inquire into the plaintiff’s loss.” This is, substantially, all the evidence in respect to the appointment of such committee, and it is, in my opinion, insufficient to show any authority to submit to appraisal and to agree that the result of the appraisement should conclude the defendants.

As a matter of fact, the referee decided that the appraisal was not conclusive ; yet he admitted it in evidence, against the defendants’ objection. That was erroneous. If the submission and award were not legal and binding, then all and any part was incompetent as evidence, and should have been ■ excluded. The defendants may have been willing to submit the settlement of the loss .to Boyd and Fellows, who were connected with some of the companies, having confidence in their judgment and discretion, while they would be unwilling to confide the settlement to others. At any rate, there is no evidence of any authority given to Boyd and Fellows to appoint appraisers, or to bind the defendants by their award.

The defendants' exhibits, Nos. 1 and 2, which were offered in evidence and excluded by the referree, may have been competent to show, as stated by the defendants’ counsel, that the submission and award were abandoned by the parties, but as they are not printed in the case, or copies furnished to us, we are unable to say whether they were improperly excluded.

There were several questions put to witnesses in respect to the value of the goods, and excluded by the referee, which I think were clearly proper.

Mr. Warren had testified that shortly before the fire he had purchased $2000 of goods of the plaintiff, to be selected from his entire stock ; that he selected the most saleable goods, and examined the whole stock, and had exposed them for sale. He was asked : “ What efforts did you use to find purchasers ?” “What was the best offer you could get ?” “For how much did you sell them ” These questions were excluded by the referee. Dolan, who had purchased the goods from Warren, was asked what he gave for them, and what was their fair cash value. The referee excluded the answer, as also what was realized by the auction sales of the goods.

The question before the referee was the loss and damage to the goods. Proof of the value of goods selected a few days before the fire from the general stock of the plaintiff, was some evidence of the value of the goods remaining. It was competent, although, perhaps, slight. We cannot speculate on the effect of incompetent evidence ; nor can we say that the answers to the questions overruled might not have materially changed the result. Upon exceptions we can only determine whether there has been error.

I am of opinion that the judgment should be reversed, the order of reference vacated, and a new trial had, with costs to abide the event, '

Judgment affirmed.