Field v. Banker — 22 N.Y. Super. Ct. 467

Majority

p. 467

Alfred Field et al., Plaintiffs, v. James H. Banker, Defendant.

Headnote

1. The plaintiffs, who were engaged in the business of purchasing hardware, abroad, upon commission, and shipping it to the persons for whom they had received frders therefor, received an order from the defendant in the following terms: “ I annex memorandum of chains, which please forward by an early packet, giving the preference to the ‘Black Ball Line,’ at lowest rate of freight;” this was followed by a description of the goods, and it terminated with expressing “hopes that the quality, price and charges would be so favorable as to enable him to gyve them further orders." They made a contract in England for the purchase of the goods in their own" name, the defendant being unknown there, and notified him that the goods were contracted for; and they paid for them, and subsequently shipped them, consigned to the defendant, by the ‘Black Ball Line,’ receiving a bill of lading therefor, which contained an exception exempting the carriers for liability for loss by firé. Before having left port the goods were injured by a fire which occurred upon the vessel, and were sold for whom it might concern.

Held, That the relation between the plaintiffs and the defendant was not that of vendor and vendee of the goods; but the plaintiffs were the defendant’s agents for their purchase, and as such agents, were not bound to insure the goods. (Barbour, J., dissented.)

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2. In such a case the plaintiffs are not barred from maintaining their action to recover the price paid by them, and their commissions, by reason of their having accepted for the goods, a bill of lading exempting the carriers from their common law liability. Since the goods were not wholly lost, but only injured, the defendant’s claim, if any, on that account, must be established by him, affirmatively, by way of recoupment or counterclaim.

3. There being, in this case, no evidence that the contract of shipment was out of the usual course, or that the plaintiffs could have made any better one, at the “ lowest rate of freight,” according to the terms of the order,

Held, that it was correct to instruct the Jury that it was the duty of the plaintiffs to have taken a bill of lading in a proper and usual form, and that the one taken was a sufficient compliance with that duty. (Barbour, J., dissented.)

4. Evidence that it was the custom of hardware merchants to transmit to their consignee immediate notice of having made a consignment, is inadmissible, the plaintiffs, in this case, having acted only as agents, and not as vendors.

(Before Robertson, White and Barbour, J. J.)

Heard, June 12; decided,

October 6, 1862.)

This was an action brought by Alfred Field, Robert Ibbotson and Benjamin F. Errington to recover money expended by them for the defendant’s benefit, and a commission for the purchase of certain goods for him, by them, as factors or agents.

In the year 1858, the business of the plaintiffs, who were partners and had houses in Hew York, Birmingham and Liverpool, was that of purchasing hardware on commission, and shipping it, when purchased, to the United States; the orders being received in Hew York, Philadelphia and elsewhere, and forwarded to Birmingham for execution, and the purchases made at Birmingham or in that vicinity. They sent goods purchased to the order of the party who gave the order, through the medium of their Liverpool house, unless instructed to employ other shippers, which was sometimes the case. In September, 1858, the defendant delivered to one of the plaintiffs, who was the partner resident here, (Robert Ibbotson,) a written order, dated on the 14th of that month, directed to the plaintiffs, in which he said, “‘I annex memorandum of ** chains, which please forward by an early packet, {givi ng the preference to the Black Ball Line,) at lowest rate of

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“freight; ” tMs was followed by a description, of the goods, and it terminated with expressing “hopes that their “quality, price and charges would be so favorable as to “enable” him to give them further orders. The usual commission on shipping heavy goods, such as chains, was then three per cent commission, and in this case, such were the terms agreed on, with a ninety day note from the date of invoice. The order so given was received by the plaintiffs’ house in Liverpool, on the 27th September, and the chains so ordered were purchased by the plaintiffs’ house-in Birmingham, and written notice that they were contracted for given to the defendant on the 27th of October, 1858, by the resident partner of the plaintiffs, and also-that they would be forwarded from Liverpool, according to the special directions he had given in the order. These goods were marked with the defendant’s initials, and forwarded in October and November, 1858, by railway and canal, to the plaintiffs’ house in Liverpool, which place they reached on the 10th of December, 1858. On the 9th and 18th of November, the latter were instructed by their house in Birmingham, to ship such goods to the defendant in New York, by the ‘Black Ball Line’ in preference.

In November, 1858, the freight for goods from Liverpool rose to a very high rate, reaching its climax about the 23d of that month, and the plaintiffs directed their shipping agent to delay shipping these goods, in hopes of lower rates. On the 2d of December following, such rates fell thirty per cent, and the plaintiffs engaged freight for these chains on board of “ The Isaac Wright,” one of the Black Ball Line, on board of which vessel the same were shipped on the 10th of that month, and a bill of lading in favor of the defendant, dated the same day, received from the master on the 20th of that month, in which the agreement to deliver was made, subject to the exception of “ dangers and accidents of fire, the seas and navigation ” of every nature and kind.

An invoice of such goods had been sent by the plaintiffs’ house in Birmingham, to their house in New York, on the

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4th of December, 1858, through" the general post-office in Birmingham. The bill of lading of these goods, with an invoice, which had been received- by the plaintiffs in Birmingham on the 21st of December, was deposited by the'" plaintiffs, in Birmingham,- in the general" post-office, inclosed in a letter or envelope directed to the defendant in Hew" York, on the 24th of December,-1858", before'" the departure of the mail which would reach Liverpool in time for the sailing of the next Cunard mail steamer from that port to Hew York, which was the first that sailed after the shipment of the goods in question, at Liverpool;—such being' the usual practice of " the plaintiffs. The invoice so forwarded was headed “Invoice of hardware purchased hy “ order, and for account and risk of Mr. James H. Banker, “ Hew York, forwarded" to Messrs. Field, Ibbotson & Co., “ for shipment, &c.”

The “Isaac Wright ” started to sail from Liverpool before the 23d of December, 1858, after having been for five days in the' river Mersey; but was Compelled to put back in Consequence of the breaking of a windlass, and on the 23d of that month she took fire while at anchor in the river and was burnt, and scuttled to put out the fire; the chains- were sold at Liverpool, at auction, for whom it might concern.

Various mail steamers arrived from Liverpool in Hew York, between the 23d of Hovembér, 1858, and January, 1859; one, which sailed on the 10th of Hovember,- arrived on- the 23d of Hovember; one,- which sailed on the 4th of December, arrived on the 19th; and- another, which sailed oh the 11th, arrived’ on the 27th of December, after" the fire. There were other steamers from other ports.-

The plaintiffs subsequently re-executed the same order for" the defendants.

The complaint alleged that the plaintiffs Were, and are, partners engaged in the business of purchasing commission merchants in England and the United States, under a certain firth,- and- that in stich-business they received- orders in "the City of Hew York and elsewhere in- the United State's,

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for hardware, to be by them, bought and paid for in England, and shipped thence directly to the person giving the order therefor, and at his risk, for which they were to receive the purchase price of the articles by them bought and shipped, and certain shipping expenses and commissions in that behalf, in ninety days from the date of the invoice.

It further alleged that on or about the 14th of September, 1858, the defendant gave the plaintiffs an order for a quantity of chains, to be by them purchased in England, and to be shipped to the defendant in New York, upon the terms, and according to the course of business of the plaintiffs ; and the plaintiffs, in pursuance of such order, purchased and paid for such chains in England, and shipped the same on board of the ship “Isaac Wright,” at Liverpool, in England, to the defendant in New York, and forwarded to him, in the usual mariner, a bill of lading and invoice thereof, which were received by him in January following.

It then set out the amount of the purchase-money and commissions, and demanded judgment for the amount.

The defendant, in his answer, controverted the plaintiffs’ business, their purchase of the goods and their payment of the price. He denied that he ordered the goods to be purchased or shipped upon the terms or according to the course of business set out in the complaint, and that the plaintiff forwarded to the defendant a bill of lading or an invoice of the goods, and every other allegation, except as therein after stated. He averred therein that he ordered such goods to be purchased for, and shipped to him, upon the terms and according to the usage, custom and course of business of parties engaged in the hardware trade in the Oity of New York, having branch houses in England; he further averred that he gave the order to the plaintiffs for such chains, to be procured of them houses in Birmingham or Liverpool, and forwarded to him in the usual course of parties in such trade; that he was informed that the plaintiffs had contracted for such chains at certain prices,

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and he never received any further notice of the shipment of. such chains until the 10th of January, 1859, when he received a letter dated the 24th of December previous, inclosing an invoice and a bill of lading, dated 10th of December.

The defendant further averred, in his answer, that it is the usage and custom of hardware merchants in the Oity of Hew York, engaged in business in England, and in shipping hardware from thence to persons buying in Hew York, immediately upon shipping goods in sailing vessels to the Oity of Hew York, to notify the consignees, by steamer, of the shipment of the same, and forward an invoice of the same by such steamer, so as to give the consignees an opportunity of insuring. He further averred therein, that between the 9th of Hovember and 8th of December, there were seven steamers by which letters could have been sent notifying him of such shipment; that the “Isaac Wright ” was known as a sailing vessel, and not a steamer, and was burned on the 23d of December, 1858, and her cargo destroyed; and the defendant had no insurance on such chains in consequence of the failure to inform him of such shipment. He finally denied receiving such chains.

The cause was tried before Mr. Justice White and a Jury, on the 7th of April, 1862. On the trial the defendant moved to dismiss the complaint, on six grounds, chiefly, however, involving the principle that the plaintiffs were bound to have taken a bill of lading making the owners of the vessel liable for the loss of the chains, and that in consequence of their taking a bill of lading exempting the carriers from liabilities for fire, the defendant was not liable. The defendant’s counsel offered to prove the custom set out in his answer, which was excluded, and he excepted to the exclusion. He then offered to prove, first, a general custom, where goods are ordered in Hew York of merchants having branch houses in England, or agents of such houses in this city, which are to be shipped from England directly to the purchaser in Hew York by a sailing vessel, imme

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diately to notify such purchaser of the shipment; secondly, a like custom not only to notify of such shipment by steamer, but also to forward an invoice of the goods by the same steamer, to enable the consignees to insure the same; which was refused, and to such refusal he excepted.

The Judge before whom the cause was tried, charged the Jury, that it was the duty of the plaintiffs to notify the defendant in the ordinary way, by steamer, within a reasonable time after the goods were shipped; that it was the duty of the plaintiffs to have taken the bill of lading in a proper and usual form, and the one taken was sufficient compliance with that duty; to which the defendant’s counsel excepted.

The defendant’s counsel requested the Court to charge in substance:

I. That, as matter of law, the bill of lading in this case did not give the defendant such a remedy against the carrier as he was entitled to.

II. That, without instructions, the plaintiffs were not authorized to take a bill of lading exempting the carrier from liability for loss by fire.

III. That, by being deprived of the liability of the carrier, the defendant is relieved from any liability to the plaintiffs.

This the Court refused; and the defendant’s counsel excepted to such refusal.

The Jury rendered a verdict for the amount claimed, and the Court ordered the exceptions to be heard in the first instance at (General Term, judgment to be suspended.

A. R. Lawrence, Jr., for defendants.

I. The Justice erred in denying the motion to dismiss the complaint.

There was no delivery of the chains to the defendant, either actual or constructive. The vendor sending goods by a carrier must exercise due care and diligence, so as to

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provide the consignee with a remedy over against the carrier. (1 Parsons on Contracts, 445, note g.; Buckman v. Levi, 3 Camp., 414; Clarke v. Hutchins, 14 East, 475; Alexander v. Gardner, 1 Bing. N. C., 671; Dawes v. Peck, 8 T. R., 330.)

The plaintiffs, in violation of their duty, took a bill of lading, which exempted the owners of the vessel from responding for loss or injury to the chains, consequent upon fire produced by any cause whatever. Hence, as the vendors failed to provide defendant with the remedy which he was entitled to against the carriers, the mere shipment of the goods did not constitute in law a delivery to him, and he is not liable for their value.

II. The Justice erred in his refusal to charge as requested by the defendant’s counsel.

IH. The evidence offered by the defendant’s counsel to show the usage, custom and course of business of hardware merchants, engaged in shipping goods to Eew York from England, was improperly rejected.

(a.) It is well settled that evidence of usage in a particular trade is admissible, for the purpose of annexing incidents to a written- instrument, concerning which the written instrument is silent. (Boorman v. Jenkins, 12 Wend., 566 ; Cooper v. Kane, 19 Wend., 386 ; Esterly v. Cole, 3 Comst., 502; Barber v. Brace, 3 Conn., 9 ; Brown v. Byrne, 3 Ellis & Blackburn, 704, 716; United States v. Arredondo, 6 Peters, 715; The Reeside, 2 Sumner, 569; Bank of Columbia v. Fitzhugh, 1 Harr. & Gill, 239; The St. Nicholas Ins. Co. v. The Mercantile Mu. Ins. Co., 5 Bosw., 246 .)

Indeed, the rule to be collected from the numerous cases on this subject is, that any mercantile usage is admissible in evidence, unless it labors under the objection of introducing something repugnant to, or inconsistent with the , tenor of the written contract. (Humfrey v. Dale, 7 Ellis & Blackburn, p. 27; Rule so stated per Lord Campbell, Ch. J. ; Brown v. Byrne, 3 Ellis & Blackburn, p. 704; Per Coleridge, J., at p. 716; Moore v. Campbell, 26 E. L. &

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E., 522; Cuthbert v. Cumming, 30 E. L. & E., 604, and cases cited supra.

(b.) In this case, the contract between the parties consists of the order of the defendant of September 14th, and the acceptance by the plaintiffs of October 27th, 1858.

The contract is silent as to the usage, but there is nothing in the contract to which the usage is repugnant, and the offered evidence is precisely within the principle laid down in the cases supra.

(c.) Again, where there is a general usage of trade, all persons dealing with that trade are supposed to. contract with them upon the footing of that usage, unless something inconsistent therewith appears in ■ the agreement between the parties. (Cooper v. Kane, 19 Wend., 387 : Rushforth v. Hadfield, 6 East, 519, per Lord Ellenborough.)

(d.) The parties by whom the usage was proposed to be shown were perfectly competent, from their experience in the hardware trade, to prove the usage. (Mills v. Hallock, 2 Edw., 652 .)

IV. The evidence as to custom having been improperly excluded, the Court cannot say that if it had been received the same verdict would have been rendered, and its exclusion forms a good ground for a new trial. (Anderson v. Busteed, 5 Duer, 485 ; Hahn v. Van Doren, 1 E. D. Smith, 411; Ward v. Washington Ins. Co., 6 Bosw., 230 .)

Charles Jones, for plaintiffs.

I. The motion to dismiss the complaint was properly denied.

1. The plaintiffs had proved that they had purchased and shipped the chains in accordance with the defendant’s order.

2. The defendant had notice that his order was accepted, and that the goods would be forwarded according to his directions.

3. There is no evidence that the bill of lading was not in the usual form of bills of lading given by the proprietors of the “ Black Ball Line.”

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4. The plaintiffs being mere agents to purchase goods and ship them according to the defendant’s order, and the plaintiffs having proved the purchase and shipment in accordance therewith, it was for the defendant to show (if any such defense existed) that the plaintiffs had failed in any duty which they as agents owed to the defendant, their principal.

There was no such evidence offered or given when the plaintiffs rested their case.

II. The evidence offered by the defendant was inadmissible.

1. The evidence of usage or custom was inadmissible.

(a.) It was not offered to interpret the meaning of the

language of the contract. There is nothing equivocal or obscure in that respect.

(b.) It was not admissible to add to the written contract, evidenced by the order, and its acceptance, other and new terms. (1 Greenleaf on Ev., §§ 281, 292, 294; Yates v. Pym, 6 Taunt. R., 446; Gibbon v. Young, 8 Id., 254 ; Hone v. Mutual Safety Ins. Co., 1 Sandf. S. C. R., 137; Beals v. Terry, 2 Id., 127; The Schooner Reeside, 2 Sumner, 569.)

2. The evidence offered was immaterial, and no foundation had been laid for its introduction.

IH. The exceptions to the refusal of the Oourt to charge as requested, are not well taken.

There was no evidence that the bill of lading was not in the usual and ordinary form of bills of lading issued by the “ Black Ball Line,” by which the plaintiffs were directed to ship the goods, and there is-no presumption that the plaintiffs violated their duty in this regard.

The defendant relies on two defenses in this case. First. The failure of the plaintiffs to notify him of the shipment of the goods in time to insure. Second. The taking a bill of lading exempting the carrier from liability for fire. Whether he considers the plaintiffs were bound to do both; that is, give such ■ notice and take a proper bill of lading, or whether,

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if he secured the liability of the carrier as an insurer, the object of the other act of duty would be sufficiently attained, and the plaintiffs relieved from its performance, does not appear. In either case it will be necessary to examine the relations of the parties, and discover the true nature of the contract.

In the first place, the contract was not to deliver the goods in Yew York, to the defendant, and his liability accrued before that event. It seems to be conceded that he would have become liable at least as early as the shipment at Liverpool. It could not, therefore, be a contract for the sale and delivery of the goods, unless the shipment at Liverpool was to be taken as such delivery; if so, upon that delivery and the forwarding of the bills of lading, the plaintiffs’ performance of their part of the contract would be complete. Yo relation would remain between the parties as vendors and vendee, to impose on the former any duty to protect the latter from harm. Or even if a notice became necessary to the defendant as vendee, would the sale become void because not given at the earliest possible time after the shipment ? If the contract was one of mere sale and delivery, it was the business of the defendant to select the carrier, or, if he left the choice to the plaintiffs, to be ready to insure his interest at the instant of shipment. The carrier was the agent of either the defendant or the plaintiffs, in such case; if of the latter, the delivery was not complete until the goods arrived in Yew York; if of the former, it was so the moment they were put on board.

But there was no such contract as that between vendor and vendee; the plaintiffs were authorized to buy and ship as the defendant’s agents; they might have used his name as purchaser and left him alone responsible. It is true they personally assumed the responsibility to the sellers of the chains; but this did not alter the relation of principal and agent. From the domestic who is sent to a tradesman to purchase, articles for daily use, to the agents employed to buy millions, the rule is the same; the moment

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the purchase is made for the principal, he owns the property bought, from the time of its delivery to his agent, and is bound to reimburse the latter for moneys expended by him in the purchase; the property is at his risk and not his agent’s, whatever responsibility the agent may be under for the care and safe transmission of the goods afterwards. They are his property, subject to the lien for the purchase-money, and not his agent’s. The recollection of the only plaintiff examined, -is clear and distinct upon the subject of the terms. He says, “ these were the “ terms upon which the invoice was to be filled.” The question was then put to him, “ can you swear positively “that you communicated to the defendant that you were “ to purchase on the terms enumerated, &c.,” and he answered, “yes;” and being asked why, he said, “simply ■“ because it is our usage. I went immediately down when “the order came.” It is true, he added, “I have no distinct recollection of ever communicating these terms “ personally,” but this means no more than that he testified to an invariable custom, although he did not recollect the -particular occasion. The defendant, on his examination, undertook to deny the notice, but did not testify what the terms of the contract actually were. In his answer, also, although controverting the business of the plaintiffs, as described by them, he does not -undertake to say what it was. There is not the slightest evidence in the case that the plaintiffs were either hardware merchants or manufacturers ; the only evidence offered establishes that they were commission merchants; and the defendant, on his examination, does not undertake to deny it. The letter of 27th October, notifies the defendant that his order is contracted for at certain prices,, to which he makes no objection. Under such circumstances, to infer that the defendant believed that he was buying goods of the plaintiffs, instead of employing them to buy them, would be utterly unwarrantable as a violation of all probability. I -shall therefore' be justified in assuming that they acted as agents, notwithstanding that, being in England, where

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their principal was not known, they may have paid for the goods. . It would be a novel doctrine that everything for which any one paid at the request of another, became the absolute property of the former, and the loss of it was entirely at his risk.

Assuming that these parties stood in the attitude of principal and agent to each other, the duty of the plaintiffs was manifest, to obey any orders of the principal as to the transmission of the goods, and in the absence of such orders to transmit them in the usual, way. Hone of the liabilities or duties of a factor, to whom goods are consigned for sale, devolved upon them. They were not bound to insure, as the goods were to be but transiently in their possession; it was the duty of the principal to provide for that.

But the defendant directed the plaintiffs to ship at the lowest rate of freight, and in the first of the line of ships prescribed, that sailed after the fall in rates. There was no difficulty in the defendants insuring the goods by an open policy, without knowing in what vessel the goods were to arrive; they did so as to other risks, and there was no danger of loss of the premium, if the risk never attached. Unless they relied on their ability to do so, they should have directed the plaintiffs to insure.

The learned Justice before whom the cause was tried, charged the Jury that it was the duty of the plaintiffs to notify the defendant of the shipment in a reasonable time after it was completed; and the verdict was rendered upon that point in favor of the plaintiffs. Ho exception was taken to the charge upon that point, nor was any request made for a different instruction; and there is sufficient evidence to support the verdict.

But it is said that the plaintiffs must fail to recover, because they failed to procure insurance by the carrier ; this would make the contract entirely conditional, depriving the plaintiffs of the right of recovering money paid for the defendant’s use by them, because they did not have the goods insured. There is no pretense of recoupment or

Dissent

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counterclaim here. If the defendant is right, the plaintiffs could not recover, although the. defendant had received the goods, merely because they failed in their duty in one particular. The loss of the goods was without the fault of any one, and they were not rendered entirely worthless; the plaintiff would have been entitled to recover something ; the defense, therefore, should not be as a bar, but a mere recoupment or set-off.

In case of recoupment, the defendant is bound to make out his case affirmatively. The vessel in which the goods were shipped was of the line prescribed; the bill of lading was such as they chose to give; they could not be compelled to alter it and assume other risks, such as those undertaken by underwriters; and there is no evidence that the contract was out of the usual course, or that the plaintiffs could have got any better, so as to become chargeable with negligence. The rates of freight as prescribed, was to be the lowest, so that any additional sum for insurance was probably deducted; there is, therefore, no reason for dissatisfaction with the charge of the Court on that point.

The evidence offered in regard to customs of hardware merchants could not affect commission merchants; the rule of vendor and vendee is entirely different from that of principal and agent. A vendor whose contract is not fulfilled until the goods sold by him are entirely under the control of the vendee, stands in a different position from the agent who has acquired the property for his principal, and may still have duties to perform in regard to it before he can earn his commission. That evidence was properly excluded.

There being, therefore, no- errors in the rulings of the Court or the exclusion of testimony, the verdict should be affirmed and judgment given for the plaintiff, with costs.

White, J., concurred in this opinion.

The order for the goods in this case, which must be considered as the contract between the parties, is, in the usual form of orders given by

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one merchant to another, and the only member of the plaintiffs’ firm who conversed with the defendant upon the subject has no distinct recollection that he communicated to him the terms upon which the invoice or order was to be filled. Indeed, there is no evidence in the case to show that the defendant knew or supposed the plaintiffs were to buy the chains for him upon commission. That, however, is not very important, inasmuch as it is clear that the goods were ordered from the plaintiffs, and that they, in fact, purchased them in the name of their own firm, or upon their own responsibility, and now seek to recover the purchase price; and, therefore, that they did not act in the transaction as mere agents for the defendant. For the purposes of this suit, the parties may be considered as vendor and purchaser.

The plaintiffs, under the order given to them to forward the goods by packet, and the undertaking on their part to execute that order, were required to do more than merely to send such goods on board the ship. They were also bound to perform all such acts, incidental to the shipment, and customary among persons in that business, as would render the same effective and beneficial to the owner; such as taking a bill of lading, and sending forward an invoice so that the articles could be entered and passed at the custom house here. The taking of the bill of lading may be considered a part and parcel" of the shipment itself, as such shipment would be incomplete without it. But it by no means follows that the placing of the goods on board and taking therefor a proper bill of lading was not an execution of the order to such an extent as to make the delivery to the defendant complete, even though no invoice,- bill of lading, nor advice of shipment was sent forward at that time, or even until long thereafter. The consignors, in such a case, would, doubtless, be liable to the consignee for any injury sustained by him in consequence of such omission of duty on their part, but the . delivery being complete, and the goods not having *been destroyed, but only partially injured, he could only recover

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such damages, in an action of this kind, by way of recoupment, and not as an absolute defense to the entire action. In this view of the matter, the exclusion of the testimony offered by the defendant to prove the custom of merchants in regard to sending forward advices of shipment and invoices was not erroneous, because the fact, if proved, would have been unimportant.

The plaintiffs were directed by the order to “ forward, “ by an early packet, giving preference to the Black Ball “ Line.” If the direction to forward had been general, without referring to any particular line, the plaintiffs would, undoubtedly, have been bound to ship the goods in the ordinary way, and upon such a bill of lading as is usual and customary among merchants and shippers, which the one taken in this case, containing as it does an exemption of the vessel from liability in case of loss by fire, is not. If the bill contains any exemption from liability, except from loss occasioned by the act of God or the enemies of the government of the country from which the goods are shipped, it is not the-bill of lading which has been recognized by the common law for centuries as* customary among merchants. It is the duty of the vendor, where goods are transmitted: to a- purchaser by a- carrier,, to exercise due ©are- and diligence so as to- provide the consignee with a remedy over against the carrier. (1 Parsons on Cont., 445, note g.; Buckman v. Levi,, 3 Camp. R., 414; Clarke v. Hutchins, 14 East, 475; Alexander v. Gardner, 1 Bing. N. C., 671; Dawes v. Peck, 8 T. R., 330.) That obligation would, in the case supposed, have rested upon the plaintiffs; and to excuse themselves for its non- ■ performance, it would be incumbent upon them to show that packet ships issuing the usual bill of lading could not be found.

I am unable to preceive that the direction to give a preference to the Black Ball Line, removes the obligation above suggested, or authorizes the plaintiffs to ship the goods otherwise than in the customary manner. They are to- give a preference to the line in question; that is, all

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things being equal, they are required to ship by that line. But the order no more empowers them to ship under a bill of lading containing unusual and extraordinary exceptions, than it permits a shipment by such line at an extortionate price, to the exclusion of other packet ships, offering to carry at low rates of freight. As the shipment, then, under the bill of lading set forth in the case, was unauthorized by the order, as well as in violation of the plaintiffs’ legal obligations, it follows that the goods were never delivered to the defendant, under or in accordance with his order directing the plaintiffs to foward them by packet; and, therefore, no cause of action as alleged in the complaint, has accrued to- them against the defendant.

Bor these reasons,, the verdict should be set aside as contrary to evidence, and a new trial granted.

Judgment for plaintiffs on the verdict.