WalkeR, J.,
after stating the material facts: This is a case of great apparent hardship, as will appear from our recital of the facts, but it is a misfortune which has come to the defendants through no legal fault of the plaintiffs, and therefore must be borne with patience and patriotic resignation, as it was caused by the pressing needs of our Government for immediate and rapid transportation in the movement of men and materials for war purposes. This alone would not exonerate the plaintiffs, but defendants entered into a contract with them which appears in the statement, by which they agreed that the plaintiffs should not be held “liable,
or responsible ,”
for any delay, over which they had no control, and occasioned by the railroads being unable to furnish cars, because of prior Government demands upon them to supply transportation for war purposes.
The defendants asked for two instructions (which, were practically identical), to tbe effect that as tbe potatoes were shipped, not by open bill of lading, which would have vested the title to them in the defendants, and thereby imposed the risk of delay upon them, but by bill of lading “to their own order, notify Jeffreys & Sons,” the risk of any delay was assumed by the plaintiffs, because they retained the title to the potatoes during the course of transportation and until delivery to the defendants upon payment of the draft, which was drawn to order with bill of lading attached. But this view leaves out of consideration the important and very essential fact that this shipment moved under special contract, excluding the ordinary liability of a shipper by a carrier, and containing a clause therein which protects them from delay in transportation in certain circumstances, which have already been stated. It appears, first, that the defendants agreed that the shipment should be' made as it was, that is, “Amount draft and bill of lading attached,” and specially stipulated, that the plaintiffs should not be considered in fault, when any delay was caused by conditions and circumstances beyond their control, such as the preferential right of the Government to all means and methods of transportation. The ordinary rules' of law do not prevail in such instances, for
inter arma leges silent.
"Where the preservation of the Government is at stake, all private rights must give way and be subordinate to it. This is not only the law of war, but the call of patriotism. Ordinarily, the maxim is that “private good yields to public,” and the interest of an individual should give place to the public good
(privatum, commodum publica
cudit), Jenk. Cent., p. 223, case 80; and the other version of it is that private inconvenience is made up or compensated for by public benefit
(privatum incommodum publico bono pensatur.)
But on another, which is somewhat related to those we have stated, the safety of the people is the supreme law, and as such entitled to the first consideration, and it is the inexorable law that regard be had to the public welfare, and, in times of war and peril, to the public safety, for in such instances an interference with private rights is obviously dictated and justified by the immediate urgency of the occasion and the highest necessity. Broom’s Legal Maxims (8 ed.), pp. 2 to 5. The rights and supreme power of the Government in times of war, which may be exercised for its own safety and the protection of its people, must be conceded, and among those rights is the one which permitted it to commandeer the existing means of transportation for its own purposes in prosecuting the war which it had declared against the Central Empires, and to the extent of seizing the railroads or subjecting them to its use and control for war purposes, and the exercise of this power was the reason for inserting the special clause in this contract, exempting the plaintiff from liability or responsibility for delays in transportation
beyond its control. It was a valid stipulation, and must be enforced, and if any losses bave been sustained by tbe defendant because tbe goods could not be shipped witb tbe usual and customary expedition, by reason of sucb delays, tbe defendant must submit to tbem, for there is no measure of redress, as they came within tbe class of losses where there is no technical injury, and within the designation of the contract of shipment, that is, “delays beyond plaintiffs’ control.” If there had been no such provision in the contract, the plaintiff might not have been protected against recovery of damages by the defendant, and perhaps could not have themselves recovered for the price of the potatoes. But the ■Government, under its war power and the “National Defense Act” of the Congress^ had the right to take over all transportation facilities and thereby prevent or obstruct the regular and usual course of carriage by rail and water. If the plaintiff had exempted itself from “liability” only, the result might have been different, but it was relieved from “responsibility” as well, and the parties meant, by the use of this word, something more than mere “liability,” or exposure to a suit, or counterclaim for damages. They intended to relieve the plaintiffs of all fault whatever, when the shipment was delayed by an embargo on transportation caused by the necessities of the Government in the exercise of its war powers as authorized by Congress.
This subject is fully discussed in
Roxford Knotting Co. v. Moore and Tierney,
265 Fed. Rep. (C. C. A.), 177;
Kneeland-Bigelow Co. v. Michigan C. R. Co.,
207 Mich., 546;
Primos Chemical Co. v. Fulton Steel Corp.,
266 Fed. Rep., 945;
Bernhardt L. Co. v. Metzloff,
184 N. Y. Suppl., 289;
Prescott & Co. v. Powles & Co.,
193 Pac. Rep. (Wash.), 680. The question is also considered in an elaborate note to
Roxford Knitting Mill v. Moore & Tierney, supra,
as reported in 2 Am. L. Rep., Anno., at p. 1429, to which we refer. It was held in
Chemical Co. v. Steel Corp., supra,
that a vendor of a crane, to be manufactured under a contract calling for delivery at a specified time, and providing that the vendor did not assume liability for loss from any cause beyond its control, was held not entitled to recover for the crane, which was not delivered at the time agreed, although the delay might have been due to orders before contracted for, as to which priority certificates had been issued by the Government. The Court recognized, however, that such a ■cause would constitute a defense to an action by the vendee for damage due to the delay. And in
Prescott & Co. v. Powles & Co., supra,
the Court stated that had the vendor been sued for damages for failure to ship the full order, the Government’s act might have afforded a defense, but that, having sued on the contract, it was essential to a recovery that a full performance be shown, and that no excuse not provided for in
the contract would justify a recovery where the performance was partial only, save an act of the vendee rendering performance impossible, or a waiver by it.
I forbear to further pursue this part of the discussion, as in this case there is a clause in the contract which, in our opinion, exempts and exonerates the plaintiffs from all blame and required the defendant to pay for the potatoes.
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WalkeR, J.,
after stating the material facts: This is a case of great apparent hardship, as will appear from our recital of the facts, but it is a misfortune which has come to the defendants through no legal fault of the plaintiffs, and therefore must be borne with patience and patriotic resignation, as it was caused by the pressing needs of our Government for immediate and rapid transportation in the movement of men and materials for war purposes. This alone would not exonerate the plaintiffs, but defendants entered into a contract with them which appears in the statement, by which they agreed that the plaintiffs should not be held “liable,
or responsible ,”
for any delay, over which they had no control, and occasioned by the railroads being unable to furnish cars, because of prior Government demands upon them to supply transportation for war purposes.
The defendants asked for two instructions (which, were practically identical), to tbe effect that as tbe potatoes were shipped, not by open bill of lading, which would have vested the title to them in the defendants, and thereby imposed the risk of delay upon them, but by bill of lading “to their own order, notify Jeffreys & Sons,” the risk of any delay was assumed by the plaintiffs, because they retained the title to the potatoes during the course of transportation and until delivery to the defendants upon payment of the draft, which was drawn to order with bill of lading attached. But this view leaves out of consideration the important and very essential fact that this shipment moved under special contract, excluding the ordinary liability of a shipper by a carrier, and containing a clause therein which protects them from delay in transportation in certain circumstances, which have already been stated. It appears, first, that the defendants agreed that the shipment should be' made as it was, that is, “Amount draft and bill of lading attached,” and specially stipulated, that the plaintiffs should not be considered in fault, when any delay was caused by conditions and circumstances beyond their control, such as the preferential right of the Government to all means and methods of transportation. The ordinary rules' of law do not prevail in such instances, for
inter arma leges silent.
"Where the preservation of the Government is at stake, all private rights must give way and be subordinate to it. This is not only the law of war, but the call of patriotism. Ordinarily, the maxim is that “private good yields to public,” and the interest of an individual should give place to the public good
(privatum, commodum publica
cudit), Jenk. Cent., p. 223, case 80; and the other version of it is that private inconvenience is made up or compensated for by public benefit
(privatum incommodum publico bono pensatur.)
But on another, which is somewhat related to those we have stated, the safety of the people is the supreme law, and as such entitled to the first consideration, and it is the inexorable law that regard be had to the public welfare, and, in times of war and peril, to the public safety, for in such instances an interference with private rights is obviously dictated and justified by the immediate urgency of the occasion and the highest necessity. Broom’s Legal Maxims (8 ed.), pp. 2 to 5. The rights and supreme power of the Government in times of war, which may be exercised for its own safety and the protection of its people, must be conceded, and among those rights is the one which permitted it to commandeer the existing means of transportation for its own purposes in prosecuting the war which it had declared against the Central Empires, and to the extent of seizing the railroads or subjecting them to its use and control for war purposes, and the exercise of this power was the reason for inserting the special clause in this contract, exempting the plaintiff from liability or responsibility for delays in transportation
beyond its control. It was a valid stipulation, and must be enforced, and if any losses bave been sustained by tbe defendant because tbe goods could not be shipped witb tbe usual and customary expedition, by reason of sucb delays, tbe defendant must submit to tbem, for there is no measure of redress, as they came within tbe class of losses where there is no technical injury, and within the designation of the contract of shipment, that is, “delays beyond plaintiffs’ control.” If there had been no such provision in the contract, the plaintiff might not have been protected against recovery of damages by the defendant, and perhaps could not have themselves recovered for the price of the potatoes. But the ■Government, under its war power and the “National Defense Act” of the Congress^ had the right to take over all transportation facilities and thereby prevent or obstruct the regular and usual course of carriage by rail and water. If the plaintiff had exempted itself from “liability” only, the result might have been different, but it was relieved from “responsibility” as well, and the parties meant, by the use of this word, something more than mere “liability,” or exposure to a suit, or counterclaim for damages. They intended to relieve the plaintiffs of all fault whatever, when the shipment was delayed by an embargo on transportation caused by the necessities of the Government in the exercise of its war powers as authorized by Congress.
This subject is fully discussed in
Roxford Knotting Co. v. Moore and Tierney,
265 Fed. Rep. (C. C. A.), 177;
Kneeland-Bigelow Co. v. Michigan C. R. Co.,
207 Mich., 546;
Primos Chemical Co. v. Fulton Steel Corp.,
266 Fed. Rep., 945;
Bernhardt L. Co. v. Metzloff,
184 N. Y. Suppl., 289;
Prescott & Co. v. Powles & Co.,
193 Pac. Rep. (Wash.), 680. The question is also considered in an elaborate note to
Roxford Knitting Mill v. Moore & Tierney, supra,
as reported in 2 Am. L. Rep., Anno., at p. 1429, to which we refer. It was held in
Chemical Co. v. Steel Corp., supra,
that a vendor of a crane, to be manufactured under a contract calling for delivery at a specified time, and providing that the vendor did not assume liability for loss from any cause beyond its control, was held not entitled to recover for the crane, which was not delivered at the time agreed, although the delay might have been due to orders before contracted for, as to which priority certificates had been issued by the Government. The Court recognized, however, that such a ■cause would constitute a defense to an action by the vendee for damage due to the delay. And in
Prescott & Co. v. Powles & Co., supra,
the Court stated that had the vendor been sued for damages for failure to ship the full order, the Government’s act might have afforded a defense, but that, having sued on the contract, it was essential to a recovery that a full performance be shown, and that no excuse not provided for in
the contract would justify a recovery where the performance was partial only, save an act of the vendee rendering performance impossible, or a waiver by it.
I forbear to further pursue this part of the discussion, as in this case there is a clause in the contract which, in our opinion, exempts and exonerates the plaintiffs from all blame and required the defendant to pay for the potatoes. They cannot object that the plaintiff retained the title to the potatoes under the terms of the draft and bill of lading annexed, for they deliberately consented to this form of shipment, and their real promise, therefore, was to pay the draft when the potatoes arrived, take up the bill of lading, and receive the potatoes, and even if they had not so promised, the clause of exemption in the contract would require them to do so, as by its terms, and the finding of the jury as to the embargo preventing an earlier delivery, the plaintiffs were in no fault, having delivered the potatoes as soon as they could do so, and the contract exempted them not only from liability, but also from “responsibility,” for not delivering before the end of the planting season.
The jury’s verdict has disposed of all other questions concerning defendant’s liability for the price of the goods, as, for one example, the shipment by the Clyde Line to Charleston, S. C., it appearing that the Merchants and Miners Transportation Line, the usual one, had been closed by the Government to private transportation.
There is no contention, as we understand the case, that the potatoes were of inferior quality when they were delivered to the carrier for shipment, and there does not appear to be any ground upon which to hold the 'plaintiffs “responsible” for dilatory conduct on their part. There seems to be no negligence legally imputable to them.
Waddell v. Reddick,
24 N. C., 424.
Whether the defendants have any right over against the carriers, or any one of them, is a question not now pertinent. As to their rights under the contract of purchase and the other facts, not now -necessary for us ^o consider, see
Richardson v.
Woodruff, 178 N. C., 46;
Gwyn v. R. R.,
85 N. C., 429, where there is a general discussion of the matter.
The other exceptions are either merely formal or devoid of any genuine merit. Upon the whole, we conclude that the case was correctly tried below and the result is in accordance with the relevant and controlling principles of law.
No error.