John H. Pearson versus Henry Purkett, 15 Pick. 264

Shaw C. J. delivered the opinion of the Court. The statute upon which this action is brought, St. 1809, c. 120, which is now in force, is the revision and reenactment of several prior acts, some of which trace their origin to an early period of the Provincial government. The second

section of this statute, after providing for the appointment of an inspector general, further provides, that he shall have power to appoint deputies, removable at his pleasure, for whose official conduct he shall be answerable ; and he shall take bonds of them to himself and his successor in office, with sufficient sureties, in a sum not exceeding $1000. The statute does not distinctly declare how, to whom, and to what extent, the inspector general shall be liable ; all these points are left to be regulated by the rules and principles of the common law, and to be adapted to the circumstances, as they may arise.

No question is made, m the present case, that any person purchasing fish branded in pursuance of the statute, on the faith of the brand, is entitled to his remedy, if, through the default of the deputy, it turns out that such fish were not of the quality and condition indicated by the brand; and it is easy to perceive, that the statute would fall far short of accomplishing the purposes for which it was manifestly designed, if it did not go to this extent. 1. In regard to the first exception, we think it cannot be sustained.

The statute does not require that a suit shall be commenced, in the first instance, against the deputy, and a judgment oh tained against him, before proceeding against the principal; and there is no rule of the common law and no analogy, which requires it. In the case of sheriffs., which is nearly analogous, by the common law, no action lies against the deputy ; but it must be brought against the sheriff only. In this commonwealth, it has been held, that the party aggrieved by the default of the deputy, may have his election, to proceed against the deputy, or against the sheriff in the first instance.

Suppose this case to be analogous, it would not prevent the plaintiff from proceeding against the defendant as inspector general in the first instance. There is no rule of justice or policy, in the absence of positive regulation, which seems to us to require it. 2. Nor do we perceive any ground for sustaining the second exception. The responsibility declared by the statute, which the prin cipal shall be under, for his deputy, is unlimited.

There might be good reasons of expediency, why the inspector general, who has an entire control over his deputy, should be restrained from requiring excessive bonds of him, without supposing that by any implication the same amount was intended as a limit to the liability of the principal. It may be well, and tend to secure better appointments of deputies, to make the principal to some extent liable for the capacity and fidelity of his deputies, without sureties for his indemnity.

The law is an important one to the commerce and industry of the commonwealth, the fees provided for inspection are liberal, adapted, we presume, to be an adequate compensation for labor and responsibility ; and we think that responsibility' ought not to be narrowed by any strained implication, beyond what the liberal policy and the useful and beneficial objects of the statute require. 3. And we entertain the same opinion, in respect to the third exception. There are few cases, in which a jury can be instructed that any evidence for their consideration is cpnclusive.

Here the fact, that the fish had undergone a re-inspection at Baltimore, was important as evidence, and if the fish had passed an inspection there, showing that they were conformable to the brand, it would be certainly very strong evidence against the alleged default in the former inspection ; but we cannot see how it would be conclusive. As evidence the defendant had the full benefit of it; and the only subject of exception is, that the jury were not instructed that it was conclusive. 4.

The fourth exception has been a subject of much consideration, as to the rule of damages, by which the jury were to_ be governed, if they found for the plaintiff; and we are of opinion that the rule laid down at the trial was correct. We are not at all disposed to disturb the rule, that on a breach of contract to deliver goods or transfer stock &c., the measure of damages is the value of the goods or stock at the time and place, where, by the contract, they were respectively made deliverable. And this was the rule laid down in the case of Shaw v. Nudd, cited at the argument.

But in the present case, it is to be considered that the very object and purpose of the inspection is, to prepare the fish for exportation. After inspection, by common consent, the brand is to stand in the place of all other evidence of quality and condition, as between buyer and seller ; and would probably be deemed conclusive, upon all questions of warranty, and alleged fraud, as between those parties. The main purpose of this statute is, to secure such a careful inspection, as to make the brand the true index of the contents.

It is further to be considered, that when fish are thus purchased for exportation, it is not expected that they will be opened, or examined, or that the quality can be discovered, until they reach the place to which they are exported. Such is the time and place, at which the default in the inspection must be expected to be discovered.

We think it consistent with justice, and the plain rule of allowing an indemnity, that the purchaser should recover the difference between the actual value of the fish, as they turn out at such place, and the value which the fish would have had at the same time and place, if they had been of the quality and in the condition indicated by the inspection.

This of course is to be taken with this qualification, that they are exported within the usual and reasonable time, after inspection, that they are exposed to no extraordinary heat or other cause of damage, and that the) are exported to no remote or unusual place, but to any of the ports or places to which the like kind of fish are usually exported from the same market. This was the rule prescribed at the trial, and we think it does not exceed the limits of a reasonable and actual indemnity. 5.

The next exception presents a question of great importance to this branch of the public economy, and requires a construction of the statute providing for the inspection of pickled fish, deeply affecting the commercial interests of the commonwealth. • The instruction to the jury substantially was, that the brand is, in some sort, an assurance and warranty, that the fish are, and for a reasonable time, and within reasonable limits, shall continue to he, of the quality and condition in dicated by the brand, that is,- as required by the statute, that they were caught in the right season, were well struck with salt in the first instance, and have been well preserved sweet, and free from rust, taint or damage ; and that if within a reasonable time, without improper exposure, they become unmerchantable, the inspector is answerable.

The declaration, if we may judge from the very brief abstract of it contained in the report, proceeds on the same principle. After averring that the deputy of the defendant inspected and branded the fish, it further alleges, that the fish were not well struck with salt or pickle, by which means the plaintiff sustained damage, without any allegation of want of fidelity, skill, or care on the part of the inspector. Is this the true nature of the responsibility, intended to be charged upon the inspector and his deputies, by the statute ?

The statute, (§ 2,) after providing that the inspector general shall have power to appoint deputies, adds, “ for whose official conduct he shall be answerable.” In the next preceding statute (St. 1803, c. 55,) of which the present is a revision, the words,were, 11 for whom he shall be answerable.” Probably in legal effect the provisions are alike, the latter being a little more precise in form.

The effect is, that the inspector general shall be answerable for the appointment of deputies suitably qualified in point of skill, capacity and fidelity, and that he shall be responsible, that they faithfully perform the duties they undertake. The 3d

section provides, that it shall be the duty of the inspector general or his deputies, to see that the fish have been well struck with salt or pickle in the first instance, and preserved sweet, free from rust, taint, or damage. Another clause in the 2d

section requires that the inspector shall give bond for the faithful discharge of his duty, and shall be sworn ‘aithfully to perform the same. And in like manner it directs, that the deputies shall be sworn to the faithful discharge of their duty. The 8th

section imposes a penalty upon the inspector or either of his deputies, who shall brand any cask, the contents of which he has not inspected, packed, salted, and coopered, according to the true intent and meaning of the act, or shall permit any other person to use his brands in violation or evasion thereof. The 2d

section requires the governor, with advice of the council, to appoint an inspector general of all pickled fish, to be exported from the commonweatlh, who shall be well skilled in the quality of the same. From these clauses and provisions, as well as the general scope, tenor and purposes of the statute, and more especially from the nature of the subject, we are of opinion, that the duty of the deputy, for the performance of which the inspec tor general is answerable, embraces the possession and exercise of requisite skill, the diligent and careful application of this skill, and strict fidelity.

In other words, we think the true ground of the responsibility of the deputy, is negligence and not warranty-, and that this responsibility has its effect, whenever there is a want of requisite skill, care, or fidelity. Perhaps it may be thought, that this kind and degree of responsibility is not sufficient to secure the great objects of policy contemplated by the statute; but we think this objection will vanish, when we consider the nature of the responsibility, which the rule, as we understand it, imposes.

Like professional men, artists, officers, and all other persons, who undertake for hire or reward to perform labor requiring skill, they are bound at their peril, to bring to the performance ot the labor, the degree of skill and care, whicl are necessary according to the subject matter, and the nature of the duty to the complete and effectual performance of it; and any degree of skill and care, which falls short of this, is, in lega, contemplation, negligence.

So of professional men, as surgeons and attorneys, who are required to possess all the knowledge and skill requisite to the duties of those professions, according to the state of science and improvement in them, at the time. ' So of artists, who undertake for skill, as painters, watchmakers, jewellers ; and so of farriers and artisans of all sorts.

So of persons who undertake to transport goods, and especially for hire, as ship-masters, pilots, masters and engineers of steamboats, drivers and managers of stage coaches ; and so of various classes of public officers, whose fees are fixed by law, as sheriffs and their deputies, coroners and notaries public. Whatever skill is requisite to the performance of the functions of any of these persons, (and to many of them much knowledge and skill are necessary,) they are bound to have it and diligently and faithfully to exercise it.

The argument was much pressed, that it is easy for a person of skill to determine whether fish have been well struck with salt or pickle, by the simple use of the senses, four of which are concerned in the determination, namely, sight, smell, taste, and touch; and therefore it could be hardly said, that the inspector would be held responsible for error of judgment, because the judgment is scarcely exercised at all' in coming to a true result. But it must be considered that this argument has a double aspect.

If it be easy thus to determine, should a cask of fish be found duly branded, which is yet bad on account of not being well struck with salt, the conclusion is inevitable, that the inspector was deficient in skill, care, or fidelity. But whether it is thus easy, and whether the fish so found have been exposed to any other cause of damage, are questions of fact, and it is for the jury to find them and to draw the inference.

In all these cases of labor requiring skill, if the work, be badly done, or loss, damage, or failure ensue, and the prool of such damage or failure does not carry the justification or excuse along with it, this is primd facie evidence of negligence or want of skill or fidelity, which the party must remove bv satisfactory proof, or stand to the consequences. As where a stage coach is overset or breaks down on a plain road, a vessel under charge of a pilot is run aground in good weather, or any similar failure happens unaccounted for, the fact is strong evidence of negligence, and conclusive if not rebutted.

But, as already stated, it is fact and not law, and it is for a iury to draw the inference. On these grounds the Court are all of opinion, that there ought to be a new trial.