Tunnel Short v. Pettijohn

2 Del. 48

• Court: Superior Court of Delaware
• Decided: July 5, 1836
• Status: Published

Opinion

The Court

said, to enable the plaintiff to recover, he must prove either a special contract and undertaking by the defendant to carry this hogshead of molasses, or a general usage; that is, that the defendant was a common carrier of goods, including goods of this description. M. general usage to carry goods other than molasses is proved in this case ; but so far as there is proof of usage, it is against the idea of the defendant’s general undertaking to carry molasses. And there seems to be good reason for distinguishing between this and other kinds of goods, on account of its bulk and weight, and it also appears that the defendant’s cart is too small for such freight.

Wootten for plaintiff. Layton for defendant.

The other is a more difficult question, as to when the defendant’s liability commenced, supposing him to be liable. Was the delivery to him complete, by showing him the hogshead on the wharf, or was the captain of the vessel bound to place it in the cart. But the point is unnecessary, as we are of opinion that the defendant is not liable, under the proof in the case, on the other ground.

Nonsuit ordered.