The Pennsylvania, Delaware, and Maryland Steam Navigation Company vs. William H. Dandridge, 8 G. & J. 248

Doesey, Judge, delivered the opinion of the court. The object of all pleadings is that the parties litigant may be mutually apprised of the matters in controversy between them. The declaration should substantially present the facts necessary to constitute the plaintiff’s right of action, that the defendant being thereby forewarned of the nature of the proof to be preferred against him, may, if necessary, be prepared to contradict, explain or avoid it. The motion in arrest of judgment presents the question, as to the sufficiency of the nar filed in this case.

After stating the “ loading of certain goods, chattels, wares, and merchandise,” on board the schooner Hunter, without further specification thereof, it alleges, that the defendants undertook and faithfully promised the said plaintiff, that they, the said defendants, for and in consideration of the sum of thirty-three dollars and thirty-three cents, to be paid by the said plaintiff to the said defendants, would safely and securely take the said schooner or vessel so loaded as aforesaid, with the goods and chattels of the said plaintiff^ from and out of the ice, and from and out of the harbour and port of Baltimore aforesaid, to and at such point, or place of safety, in the said river or bay, below where the same was frozen, and below where the navigation thereof was obstructed by ice as aforesaid, by breaking the said ice, and towing the said schooner or vessel to such point or place of safety as aforesaid.

Yet the said defendants, not regarding their said promise and undertaking, and not regarding their duty in this behalf, afterwards, to wit, on the day and year aforesaid, at the county aforesaid, neglected and refused so to do, although thereto requested by the said plaintiff, whereby and by reason of the negligence and improper conduct of the said defendants, and their agents, the said schooner or vessel was injured, stranded, and lost; and the aforesaid goods and chattels, wares and merchandise of the said plaintiff, became and were greatly broken, damaged and' destroyed, and wholly lost to the said plaintiff.

The first reason assigned for arresting the judgment is, because the plaintiff’s declaration does not show, or allege, any consideration for the defendants’ undertaking and promise therein declared upon. This objection we think well founded, and is fatal to the plaintiff’s right of recovery in the present state of his pleadings. The declaration sets out the promise and undertaking made by the defendants, but it alleges no agreement entered into between the plaintiff and defendants; it states no promise dr obligation on the part of the plaintiff to pay the $33.33.

Every allegation in the declaration may be true, and may have been proved on the trial, and yet no evidence has been offered to shew that there ever was any agreement between the parties, or promise by the plaintiff to pay to the defendants the sum they required as the consideration for their services to be rendered. Their promise then was a nudum factum, and no action would lie for their refusal to perform. We do not think the second reason assigned for the reversal of the judgment, can be sustained. The plaintiff was under no obligation to pay until the services were rendered.

The performance of their part of the agreement, had such an agreement as is alleged been entered into, is a condition precedent to the right of the defendants to demand the stipulated remuneration. The opinion of this court upon the third reason assigned, is sufficiently expressed in our .views on the two preceding reasons. The motion in arrest we also think supported by the fourth reason.

To enable the defendants to make the requisite preparations to meet the proof against them, in a case like the present, some more certain and definite description should have been given of the cargo, than that of “goods, chattels, wares and merchandise.” See Candler & Hart vs. Rossiter, 10 Wend. 487. Gould’s Pl. 503. Stephen’s Pl. 348. Martin vs. Henrickson, 2 Ld. Ray, 1007. Wiatt vs Essington, 2 Ld. Ray, 1410.

We next approach the questions raised on the several bills of exceptions taken in the county court, and first as to the admissibility of the testimony offered to be adduced as stated in the first bill of exceptions. In our opinion the county court erred in admitting the testimony offered to go to the jury. It was inadmissible under the pleadings in the cause, because the facts, in proof of ■which it was offered had not been put in issue.

The declaration simply charges the promise and undertaking of the defendants, their neglect and refusal to comply therewith, upon the request of the plaintiff, and that thereby the loss was produced. These were the only facts in reference to this exception put in issue by the defendants’ plea of non assumpsit. To meet proof in support of them, he was bound to come prepared; but not to defend himself against a cause of action resting on facts essentially different from those put in issue.

The charge alleged was in substance a total neglect and refusal by the defendants to perform their undertaking, whereby the loss accrued. The evidence offered was by necessary implication to contradict such charge, and to shew that the defendants had not wholly neglected and refused to fulfil their promise, but that they had in part executed their engagement, yet in a manner so negligent, imperfect and improper, that the vessel and cargo were exposed to perils, to which but for such conduct they would not have been subject, and that thereby the loss accrued.

Can it be said that in permitting such testimony to go to the jury, the sage and venerable maxim of the common law, “ that the allegata et probata must correspond,” would not have been violated. The materiality and importance of the proof in question upon the verdict of the jury, is manifested by the fact, that with it they gave a verdict for the plaintiff for $2,347.79 ; without it their verdict could only have been for nominal damages.

It is true the plaintiff has alleged that the loss occurred ñót merely from the neglect and refusal of the defendants to perform their contract, but by reason of the negligence and improper conduct of the said defendants and their agents: but it has not been even suggested in the argument for the appellee, that so general and indefinite a statement, without any specification of the a.cts of negligence and improper conduct complained of, would license the introduction of the testimony offered.

Under the declaration before us, the plaintiff’s right of recovery was . limited to' such damages only as naturally resulted from the defendants’ total neglect and refusal to perform their contract; he was not at liberty to inflame them by the evidence alleged to have been offered in the first bill of exceptions. In the argument on the part of the- appellants, it has been urged that the contract proved in evidence, varies from that alleged in the declaration, and therefore was inadmissible before the jury.

Two variances have been suggested: the first is, that the nar states to tow out the vessel and cargo safely and securely, which would cover losses from any and every cause, and the proof is of a contract to tow out the vessel and cargo, “free of damage of ice.” This objection Would be well founded if the defendants were in a condition to avail themselves of it in this court. The second variance is that the declaration states the consideration to be paid for towing out, to be $33.33, and the proof states it to be $>33.33J. The variance alleged is one-third part of a cent.

If this question were properly before us, we should hesitate long before we would declare that a dilference between the allegata and probata of one-third of a cent, to represent which we have no coin, currency, or means of payment, was a fatal variance. But neither of these questions of variance are presented for our determination. The proof of the contract never was objected to in the county court, and -surely since our act of assembly of 1825, such a question of variance Cannot be raised in this court.

The testimony to which objection was taken in the first bill of exceptions, was not that which proved the contract, but that which was “offered” to prove its imperfect execution, and the consequences ensuing. As authorities sustaining some of the views of this court on the points raised on the first bill of exceptions, see Archbl. Civ. Pl. 170. Doans vs. Badger, 12 Mass. 69. 2 Stark. Ev. 815. 1 Stark. Ev. 366, 2 Chit. Pl. 329 to 331. Fitzsimmons vs. Ingles, 5 Taunt. 534. We concur with the county court in their rejection of McElderry as a witness for the purpose for which he was offered.

Although it has been in many cases determined that an agent is from necessity a competent witness to prove the terms of a contract made by him, even though in his character of agent he may gain or lose by the event of the suit, yet we have met with no case in which it has been held that a person having a direct interest in the event of the suit, independently of his acts as agent, can by being employed as agent, be rendered a competent witness to prove even the acts of his own agency.

If the principle contended for in this case were sanctioned, it could scarcely be called an extension of the doctrine to say, that a co-partner selling for his firm, was a competent witness to prove the sale and the terms thereof, or that the like facts might be proved by an owner himself who disposed of his own property without the intervention of an agent.

To this length we do not feel inclined to extend this principle of necessity, but rather concur with a learned commentator on the law of evidence, who in treating on this subject says, it is to be remarked that the law has been justly jealous of any extension of this rule, and that its operation, in consequence, has been very limited in practice. 2 Stark. Ev. 753. The only question presented by the third bill of exceptions, is as to the admissibility of the testimony of JYorris. It is correctly stated in 1 Stark.

Ev. 46, that all the surrounding facts of a transaction, or as they are generally called, the res gestee, may be submitted to a jury, provided they can be established by competent means, and afford any fair presumption or inference as to the question in dispute. The matter here in dispute in relation to which this evidence was offered, was, what were the terms of the contract between the plaintiff’ and defendants below, for the towing of the Hunter and her cargo out of the ice by the steamboats of the defendants.

It was no part of the usual employment of their steamboats, or of the business of the defendants, but was an isolated enterprise in which they had consented to engage, not with a view to profit, but to accommodate- the owners of vessels confined in the port of Baltimore by the ice, and they demanded nothing more for their services than reimbursement for the probable cost of the enterprise.

That -the amount paid by each owner was in proportion to the tonnage of his vessel, and that it was the distinct understanding of the witness, at whose instance this enterprise was entered into by the defendants, at the time it was entered into, that they \ were to be at no risk, and were not to be paid any thing if they did not succeed in the enterprise. That the defendants expressed much reluctance to accede to this arrangement, and finally agreed to it on condition that a number of vessels offered to be towed sufficient to bear the cost of the enterprise; that a sufficient number was accordingly procured.

In determining on the admissibility of the testimony offered, it must be conceded, that all these facts and circumstances would have been established by the witness to the satisfaction of the jury. It must also be conceded as a fact recognized by the common sense of every man, that a vessel with a cargo on board requires a greater power to tow her out than one of the same tonnage without cargo. The verity of Captain Taylor's evidence must also be conceded.

Assuming then, the truth of the facts and existence of the circumstances enumerated, let us test their admissibility by the rule of evidence laid down by Starkie. Do they afford any fair presumption or inference as to the question in dispute ? In our opinion they do. The testimony of Captain Taylor is sufficient to warrant the jury, if they saw fit to do so, in finding that Jones knew before he entered into any contract for the towing out of the plaintiff’s vessels, what the terms of the arrangement were.

Without such knowledge is it to be presumed, that without making the slightest inquiry as to the terms, he would have directed the president of the company to “ set him, Jones, down for two vessels ?” Or if the jury should not find such antecedent knowledge in Jones, the proof of Captain Taylor was sufficient to justify the jury in finding a perfect willingness to assent to his vessels being towed out upon the same terms which by the arrangement were imposed on all other owners.

Taylor also proves that Meeteer, after he had been directed by Jones to set down his two vessels, told him, “ that the company would not be at any risk nor responsible for the property.” With this communication, Jones does not appear to have expressed either surprise or dissatisfaction, nor does he countermand his order to set him down for two vessels. Standing alone, might not the inferences deducible from Taylor's testimony, be legitimately urged on the jury, as if not wholly irreconcileable with Jones' proof of his contract with McElderry, at least as casting on it a shade of suspicion as to its accuracy ?

Is it probable that Jones would have exacted such terms ? Was it

an act of fair dealing in Jones, after acceding to the terms upon which alone the defendants assented to act, to procure from their agent a contract which they never authorized, and which was a wanton sacrifice of their interests ? Was it probable that their agent ever entered into such a contract ?

Connecting these probabilities as to the accuracy of Jones in relation to the contract, with the testimony of Norris, that the defendants were to be at no risk — that each vessel paid in proportion to tonnage, and consequently that nothing was paid to the defendants for towing out the Hunter's cargo, nothing for the alleged insurance of either vessel or cargo, can it be contended, that all the facts and circumstances adverted to, when weighed in connection, were not proper to be submitted to the jury to find if they saw fit to do so, that Jones had mistaken or mis-stated the terms of the contract on which the plaintiff had rested his right of recovery ?

But there is another aspect of this question, in which we think the testimony of Norris ought to have been received. Jones had sworn that he had made one contract with McEl-derry. Taylor had sworn that the contract was made with Meeteer, and it was the province of the jury, not of the court, under all the facts and circumstances surrounding the matter in controversy (of which those detailed by JYorris were a very material part,) to determine between whom the contract was made and what were its terms. To enable them to do this, the testimony of Morris was not only admissible but indispensable.

We therefore think the county court erred in rejecting it. The case referred- to by the appellee’s counsel, of Boyle, et al vs. McLaughlin, has no bearing upon the question now before us. The court’s rejection there of the clerk’s testimony, in the fourth bill of exceptions is unquestionably correct, as had he proved that the habitual communications of Boyle, which he detailed, had been made to McLaughlin himself at the time of their contract, they could not have been received in evidence, being offered to alter and change the written contract between the parties.

We think the county court erred in refusing the appellants’ first prayer in the fourth bill of exceptions; the instruction which was asked from the court to the jury being, the natural inference both of law and fact, not only to the extent of the prayer, but perhaps further might their instruction have been extended.

In the law of Prin. and Agent, 259, it is stated, that by a general agent is understood not merely a person substituted for another for transacting all manner of business, but a person whom a man puts in his place to transact all his business of a particular kind, as to buy and to sell certain kind of wares, to negotiate certain contracts and the like. The second direction also at the instance of the defendants ought to have been granted by the court below. In Angel and Aimes on Corp. 139, it is justly observed, that a corporation and an individual stand upon very different footing.

The latter existing for the general good of society may do all acts and make all contracts which are not in the eye of the law, inconsistent with the great purpose of his creation; whereas, the former having been created for a specific purpose, cannot only make no contract forbidden by its charter,] which is as it were the law of its nature, but in general, cant make no contract which is not necessary either directly or¿ incidentally to enable it to answer that purpose.

In deciding therefore whether a corporation can make a particular contract, we are to consider in the first place, whether its charter or some statute binding upon it forbids or permits it to make such a contract; and if the charier and valid statutory law are silent upon the subject, in the second place, whether a power to make such a contract may not be implied on the part of the corporation as directly or incidentally necessary to enable it to fulfil the purpose of its existence ; or whether the contract is entirely foreign to that purpose.

In page sixty of the same book it is stated, “ that a corporation has no other powers than such as are specifically granted, or such as are necessary for the purpose of carrying into effect the powers expressly granted, “ and that a corporation is confined to the sphere of action limited by the terms and intention of the charter.” / According to these wise and now well established principles the appellants had no power to bind themselves by such a contract as that attempted to be enforced against them, and possessing none themselves they could not delegate it to McElderry, their agent.

At the instance of the defendants then the court should have granted the direction prayed for. The instruction should have been given if required without the qualification attached to it; but it is no ground for refusing the prayer of a party because he asks less than he is entitled to at the hand of the court. It has been urged that the defendants having entered into this contract are estopped from denying their competency to have done so. To the doctrine of estoppel applied to such cases we cannot yield our assent.

If the corporation is estopped from denying its power, the estoppel operatoa-TOith h.ke effect upon those who contract with them, and the result would bethatlmniattS’Tiow limited the design and powers of a corporation may appear in its charter, practically it is a corporation without limitation as to its powers. Such a doctrine at this day is dangerous to the interest of the community, and is at war with the modern decisions upon the subject. We therefore think the county court erred in refusing the second direction prayed for by the defendants. 5 Cowen, Rep. 560. New York Fire Ins. Co. vs. Ely, 15 John. 383.

The People vs. Utica Ins. Co. 3 Wend. 482. The North River Ins. Co. vs. Lawrence, 4 Kent Com. 240. New York Fire Ins. Co. vs. Ely and Parsons, 2 Cowen, 678. Broughton vs. Salford Water Works, 1 Eng. Com. L. R. 215. We think the court erred also in refusing to give the defendants’ third and fourth directions for the reasons assigned by us in the consideration of the first bill of exceptions. We think the court erred too in denying to the defendants their seventh direction.

Could they have lawfully assumed the obligations imposed on them by such a contract as under this direction it was left to the jury to find, they were not answerable to the same extent that common carriers would have been. They were only bound to use reasonable efforts, care and diligence in the execution of their undertaking. Caton vs. Rumney, 13 Wend. 387. We concur with the county court in refusing to give the eighth direction contained in the fourth bill of exceptions.

As far as that direction is concerned the defendants admit the legal validity of their contract, but require the court to instruct the jury that if they believe the facts therein enumerated, that then the plaintiff is not entitled to recover. These facts do not per se justify such a verdict as the court were called upon to direct them to give. Such an instruction could not have been given to the jury without withdrawing from them the determination of other facts, indispensable to such a finding as they were called on to make.

Before such a direction could be given the court must have assumed as facts-so conclusively, proved .as not to be left open for the consideration of the jury, that the defendants "had used all reasonable efforts, care and diligence to tow the Hunter and her cargo through the ice. The proof, in the cause by no means warranted such an assumption on the part of the court, and it rightfully therefore refused to withdraw from the jury the determination of those disputed facts, on which it was their exclusive privilege and duty to decide.

For the same reasons the court were right in refusing to grant the plaintiff’s eleventh direction. The court below were right in refusing the thirteenth direction. It assumes without assigning any reason therefor, that it was not the duty of the defendants’ steamboats upon their return up the track to tow out the Hunter and her cargo which had been left behind by misadventure. In the absence of all adequate excuse for not doing so, if the jury believe the contract as proved by Jones, it was the duty of the steam» boats on their return to have toived out the Hunter and her cargo.

This direction is not supported as has been supposed by the case referred to in 13 Wendall. Here the voyage, the business of the steamboat, was to tow the vessels safely out of the ice; according to Jones’ testimony they were bound to use all reasonable efforts within their power to accomplish that end. In the case in Wendall the steamboat was bound on a regular trip from port to port. With a knowledge of this fact, the plaintiff, the owner of a small boat, applied to the master of the steamboat to tow his freight boat down to the steamboat’s port of destination.

The master told him he thought his boat was too heavily laden to be towed down, as the south wind was rising. The plaintiff said he was very anxious to get down, and he must and would go, and accordingly fastened his boat to the steamboat and the vessels proceeded on their voyage.

The plaintiff’s boat filled with water and sunk, and the court determined that the master of the steamboat was only answerable for reasonable care and diligence, and the court predicate their opinion upon the ground that the master of the steamboat was not the insurer of the plaintiff’s boat, and thOK'orc ordinary care and diligence was all that was requirl the inference is irresistible, that if there asi to the proof of Jones, the defendant had be him. But according insurer of the plaintiff’s vessel, he could not have discharged himself but by the use of extraordinary care and diligence.

The county court erred in refusing to grant the defendants’ fourteenth direction.

If the jury had found the facts submitted to them by the prayer, the agents of the defendants had used all the efforts to perform their contract, which under the circumstances of the case were imposed on them by law, consequently the plaintiff had no cause of action against them. ■ We think the county court were right in refusing the fifteenth direction of the defendants ; as to discharge the defendants under it, the jury must be satisfied that the loss was occasioned by the default or misconduct of the agents of plaintiff, and this fact is not committed to the finding of the jury with that distinctness and certainty, with which it ought to have been.

It is true the jury were required to find that the commander of the Hunter was aware of the danger of his situation.

But- the magnitude of the danger they were not required to "find. f Their verdict was to have been the same, whether the danger, ivas s)ich as to render the loss of the vessel in the highest, degree probable, and would therefore have been avoided by every commander of ordinary skill and prudence, or whether the danger of loss was so light and trivial, that under the circumstances in which the Hunter was placed no commander of ordinary skill and prudence would have suffered her to be towed back to the port of Baltimore, The court should have granted the direction prayed; provided, that in addition to the facts submitted to them, the jury also found that such was the perilous situation of the Hunter, that no commander thereof of ordinary skill and prudence would have refused to avail himself of the offer of being towed back to the city of Baltimore.

The court below erred in rejecting the defendants’ sixteenth instruyan, for the reasons assigned by this court in disposing oÉW first bill of exceptions. The counfflKourt we think were clearly right in refusing to grant j^m^endants’ seventeenth direction upon this obvious ground if all others were wanting: There was no evidence to have been left to the jury to find the fact, that at the time Jones contracted with McElderry for the towing out of plaintiff’s vessels, he knew the steamboats were under contract to tow other vessels up the track on their return to Baltimore.

The county court in our opinion erred in refusing to instruct the jury as required by the defendants’ eighteenth and nineteenth directions, for the reasons wre have given in examining the correctness of the county court’s refusal of the second direction. We think also that the court below erred in their fifth opinion and instruction to the jury, as to what facts it was necessary to find, to shew that the defendants had adopted and ratified the contract alleged to have been made between Jones and McElderry.

The cause of action in this case arose after the 20th .December, 1831, andthaips^iwas instituted in less than ten days the’ieaf^0^a^ggj^‘^^S 'oiFered that the defendants ever had anjdowWPdge of thelterms of the contract proved by Jones, tji&ve him with McElderry, or that the ageM*vh3$o®Med the kidney for the towing out of the plaintllrs' vessels .«#S-pald the defendants the amount collected b^hiiJ^lePebmimpticated to them the fact that any such money ht§j¿£gfl3s§gjííected, or on what account it was collected.

The court however instructed the jury, if the consideration for the towing out of the plaintiff’s vessels, as agreed on between Jones and McElderry, was collected by one of the defendants’ agents, on their way out of the ice, and paid over to the defendants, who have ever since retained the same, as also all the other money that was received from the other vessels towed out of the ice at the same time, u that then the said facts are in law an adoption of the contract, under which said money was paid by plaintiff, and that said contract is as binding on defendants as if there was clear evidence of a precise" authority from defendants to McElderry, to enter into said contract on their account.

This instruction is erroneous on two grounds. First, that the jury were not required to find that the defendants knew on what account the money paid to them was received. Secondly, that the defendants knew the terms of the contract on which the money was received. If the jury failed to find either of these facts, and they were not instructed that the finding of either was necessary, they were not at liberty to find, nor is it an inference 'of the law that the defendants adopted the contract under which the money was paid. See Bell and others vs. Cunningham, et al, 3 Peters, 69.

We concur with the county court in it's opinion on the second bill of exceptions and in the rejection of the eighth, eleventh, thirteenth, fifteenth, and seventeenth directions asked by the appellants in their fourth bill of exceptions; but dissenting from its proforma decision on the.motion in arrest of judgment, and from its decisions on the first and third bills of exceptions, and from its refusal to grant the first, second, third, fourth, seventh, fourteenth, sixteenth, eighteenth> and nineteenth directions prayed for by the appellants in their fowrth bill of exceptions, and also dissenting from the fifth opinion and instruction given by the county court to the jury, we reverse their judgment.

As the appellee in no aspect of his case is entitled to recover; no procedendo will issue, JUDGMENT REVERSE».