Harris v. Rand

4 N.H. 259

• Court: Superior Court of New Hampshire
• Decided: November 15, 1827
• Status: Published

Opinion

Richardson, C. J.

This is a very clear case. The contract between the parties was, that the plaintiff should transport the salt from Hartford to Haverhill. On this contract the plaintiff has no right of action, because it has not been performed on his part.

But it is contended that there was an agreement on the part of the defendant to receive the salt at any place where the plaintiff might be compelled to land it, and that as the plaintiff was compelled to land it at M’Duffie’s ferry, and did actually land it there, an implied promise arises to pay for the freight of all the salt to that place. In examining this ground on which the plaintiff rests his claim, we shall take it for granted that it was the understanding of the parties, that the defendant should receive the salt at any place where the plaintiff might be compelled to land it, and proceed to enquire, whether, if such were the understanding of the parties, the action can be maintained ?

Where there is a special contract to carry goods from one port to another, if the owner aecept his goods at an intermediate port, such acceptance is held to raise an implied promise to pay a pro rata freight. 1 Johns. 24, Post v. Robertson; 7 D. & E. 381, Cook v. Jennings; 10 East, 526, Liddard v. Lopes; 6 Taunt. 65, Shields v. Davis; 2 Johns. 336, Scott v. Libbey; 5 East, 316, Mulloy v. Barker; 1 Taunt. 300, Christy v. Row; Abbot on shipping, 335; 2 Burr. 882, Luke v. Lyde; Roccus, 71.

The ground on which this rule rests, is, that the owner who receives the goods at an intermediate port has the benefit of their transportation to that place, and this benefit is the foundation of the implied promise. Besides it is to be presumed that if the goods were not accepted at the intermediate port, the carrier would convey them to the destined port and earn his whole freight.

But an agreement to accept the goods at an intermediate port is not, for this purpose, tantamount to an actual acceptance of the goods. To raise an implied promise to pay a pro rata freight, the goods must be actually delivered and actually received. Until this is done, the owner cannot be considered as having received any benefit from the transportation.

In ibis case Rand never received the salt. It was lest before it could be delivered-to him. He has received no advantage from the labor of the plaintiff in transporting the salt which has been lost, and there is nothing on which to ground an implied promise to pay for that labor. If the defendant had actually received the salt he would have been liable for the freight, although it might have been lost the next moment. The acceptance of the goods is the very substance of the implied contract. The defendant agreed to receive the goods at any place where the plaintiff might be compelled to stop. But the salt has never been -.received by the defendant at any place. The landing of the salt at M’Duffie’s ferry cannot be considered as a delivery to the defendant. It still remained in the custody of the plaintiff until lost.

We are therefore of opinion, that upon the ease stated the verdict cannot be sustained, and of course there must be «/i new trial granted.