Taylor against Wells, 3 Watts 65

The opinion of the Court was delivered by Rogers, J. This was a suit to recover the value of fifty barrels of flour from the defendants, who were joint owners of the steamboat Lark. The flour was shipped at Wellsburgh, to be carried to Louisville, where it was sold by the captain of the boat, who was one of the joint owners. The evidence is by no means clear as to the real nature of the transaction.

Whether it was a sale to Kauntz, or a shipment on freight to Louisville, with power to the captain to sell, does not clearly appear; but whether it is one or the other, the result of the legal principle will be the same. It was the opinion of the court that, independent of an alleged custom, the contract of Kaunlz, as captain and part owner, was binding on all the defendants, without evidence showing the custom or. course of trade. From this opinion we dissent, without expressing any opinion as to the case if this should be found by the j ury the usual or ordinary course of trade.

It is a general principle that the owners are bound by every lawful contract made by the master relative to the usual employment of the ship. If therefore the master had authority to make the contract in question, the owners are bound by it, although made without their particular knowledge. In Colt et al. v. M’Mechen, 6 Johns. Rep. 160, and Elliott v. Rossell, 10 Johns. Rep. 1, it is decided, that the owners of vessels employed in the transportation of property are considered as common carriers.

The employment of a common carrier, as such, is to transport property from one place to another, with the strictest responsibility.as to its'safe delivery; but this does not include ex vi termini power to sell. If their agent therefore undertake, further than this, to become the factor, and, as such, make sale of the goods, the owners are not liable for his faithful performance of the trust. And what is the case before us % The plaintiff, Wells, ships fifty barTels of flour at Wellsburg in Virginia, to be transported to Louisville in Kentucky, for the customary freight.

In addition to which the captain undertakes to sell the property for Wells, and account with him for the proceeds, a contract which he fails' to perform. On the arrival of the boat at Louisville, the contract of the common carrier is at an end, and a new relation commences between the master and freighter, viz. that of factor and principal. As factor, he is accountable to the freighter, and to him in that character must the shipper resort for a breach of the contract. Kemp et al. v. Coughtry et al., 11 Johns. Rep. 107, is founded on the usage of trade between the cities of New York and Albany.

The witnesses proved a special usage, by which the captain acted not only as a common carrier, but as a factor, and on the ground of the usage, the court decided that the owners were liable. It must be recollected that this case is decided on the principle that the owners are common carriers, who have given neither an express authority to the captain to act as factor, nor is such an authority, so far as we know, to be implied from the ordinary course of trade on the river. Judgment reversed, and a venire de novo awarded.