Moses v. Norris

4 N.H. 304

• Court: Superior Court of New Hampshire
• Decided: February 15, 1828
• Status: Published

Opinion

Richardson, C. J.

The facts in this case are not so fully stated as to present the real question which is to be decided, so plainly and distinctly as could be wished.

In the first place, it is not mentioned, whether the defendant was a carrier for hire, or not. We are inclined however to think, that it must be presumed from the facts stated, that he was a carrier for hire. In the next place, it is not stated how the bars came to be missing, and we are left to conjecture that they were lost while lying in the road during the night. It is however clear, that they cannot he presumed to be missing through the fraud of the defendant, because fraud is never to be presumed.

We shall therefore consider the facts to be, that the defendant was a carrier for hire, and that the two bars were lost without any fraud on his part, and then the only question of law to be decided in the case is, whether the loss of the two bars was a conversion of the whole or any part of the iron by the defendant ?

It seems to be well settled that all persons carrying goods for hire come under the denomination of common carriers. Buller’s N. P. 70; Cro. J. 262, Rogers v. Head; 1 Wil. 281, Dale v. Hall; 1 Selw. N. P. 240.

And a carrier is answerable for all losses happening otherwise than by inevitable accident. 1 Niel Gow, 115, Covington v. Willan; 3 Espin. N. P. C. 127, The Proprietors of the Trent Navigation v. Wood; 2 Starkie’s N. P. C. 323, Stuart v. Crawley; 11 Johns. 107, Kemp v. Coughtry; 10 ditto, 1, Elliot v. Russell; 4 Burr. 2298, Gibbon v. Payton; 1 D. & E. 27, Forward v. Pittard; Jones on Bailments, 171; 6 Johns. 160; 1 Pick. 50; 15 Johns, 39; 12 ditto, 232.

But it is also well settled, that trover will not lie against a carrier for goods which have been lost by him, the proper remedy being an action on his contract and not trover. 5 Burr. 2825, Ross v. Johnson; 2 Salk. 655; 1 Ven. 223; 1 Selw. N. P. 341.

We are therefore of opinion, that the evidence was not sufficient to shew any conversion of the two bars that were lost by the defendant.

With respect to the residue of the iron, it was very properly referred to the jury to say, whether the defendant refused to deliver it, when demanded at Exeter ; or, whether the plaintiffs refused to receive it. We see no reason for disturbing the verdict, and there must be

Judgment for the defendant.