Jesse J. Simkins vs. Norwich and New London Steamboat Company, 11 Cush. 102

Dewey, J. The agreement existing between these three companies as to the business of transporting goods from Boston to New York, will render the defendants liable for any default or neglect of duty therein. If any objection could have been taken on the ground that the suit was brought against the defendants solely, it could only be by a plea in abatement. The great difficulty of the case arises upon the contract, upon which the court are called on to give a construction That contract is ambiguous on its face to some extent.

Its construction may be somewhat decided by extrinsic facts, particularly on the point, whether the defendants are to be charged as common carriers from Boston to Norfolk ? The agreed facts show that the defendants and their associates were not in fact engaged in carrying goods by any lines of railroads, steamboats, or other conveyances under their contract. We think their undertaking was to carry to New York, and then to forward the box by other lines to its final destination. It was their duty to carry the same safely and in a proper mode of conveyance to New York, and to forward it by other lines.

The defendants neither charged nor received freight for the same beyond New York. The box having been properly, in all respects, carried to New York, the only ground of complaint is, the neglect of the defendants to forward the same in a proper manner to Norfolk. The plaintiff alleges that by the terms of the contract, the defendants were required to forward the box from New York by steamboat and railroad, and not by a sailing vessel. It is conceded that the custom of the defendants, in the absence of any direction to the contrary, was to send goods destined to Norfolk, by a sailing vessel or sea route.

But the plaintiff contends that there was, in the present case, a particular direction, which required it to be sent by steamboat and railroad. The box was marked thus : “ One case of merchandise. To be forwarded by steamboat and railroad. Hardy & Delk, Norfolk, Va., for J. J. Simkins, Eastville, Va.” This direction is, however, ambiguous. It may have reference to the transit to New York,"that being the defendants’ line of transportation. It may have been intended to apply to the whole route to Norfolk.

But it fails of that direct and specific instruction, which was required, if the plaintiff would require the defendants to depart from the ordinary mode of forwarding by a sailing vessel from New York. The defendants had no interest in the profits of transportation beyond New York. To subject them to damages for forwarding from New York by their usual mode, a mode only one twentieth of the expense of sending by a line of various railroads and steamboats having no common connection, and, therefore, not naturally to be resorted to, the plaintiff must establish a plain case of instructions to that effect.

It would have been easy to have designated the line by which the

article was to be forwarded from New York with more precision, and to have accompanied it with some special notice that it was to be sent by the most speedy mode of conveyance. This was the more necessary, inasmuch as the sea route was the more usual one, was much less expensive, and in time of convey anee, differed only a few days. Upon these grounds, the court are of opinion that the plaintiff is not entitled to maintain his action, and judgment must be entered for the defendants. Judgment for the defendants.