
    John L. Pezant vs. John Crawford.
    
      \ wharfinger, who has not been directed to store, is not liable for the loss of rice upon his wharf after it has been weighed; for the wharf., age paid is not a consideration for the safe keeping of the rice.
    This was a special action on the case against the defendant as a wharfinger, for the price of two barrels of rice, alleged to have been lost whilst in his custody, and tried before the Recorder of the city of Charleston.
    A witness, called by the plaintiff, deposed that he saw a quantity of rice upon the defendant’s wharf, belonging to Mr. Bo Huger ; the number of barrels he could not recollect ; that he saw sixty barrels weighed, which was represented to him to belong to Mr. i?. Huger; that he sold this rice as amounting to that quantity to Mr. Staney, for the plaintiff; that he informed the weigher, the clerk of the defendant, that the rice was sold, but he gave no order respecting it; that he heard a conversation between the plaintiff and the defendant, from which he collected that the wharfage for the rice had been paid j that the defendant had not been directed to store it; and after weighing it, the defendant declared he did not consider himself responsible for any of the rice which might thereafter be missing. The rice, the witness stated, had been sold for §> S 75 per the hundred.
    Another witness, called by the plaintiff said, that he as the plaintiff’s agent received, at Metfs wharf, all the rice bought from Mr. Simons by the plaintiff. That the first, parcel of it arrived a little before he went to dinner, which was about half past one, and that between four and five o’clock, it was discovered that two of the barrels were missing.
    . A witness produced on the part of the defendant said, he was the defendant’s clerk ; that he delivered the sixty barrels of rice above alluded to, to a man oí the name of Butler, who asked for it in the plaintiff’s name, and who the plaintiffs told the witness had been sent by him for the purpose of receiving it. Upon being cross-examined, the witness said, when he delivered the rice to Butler, he did not count it; that he saw the drayman take some of the rice, for which he brought a number of drays, and sent .two barrels on each dray ; that the rice had been weighed about ten minutes before its delivery; during which period none of the barrels were missing. He says none of the barrels were missing, because, between ,the time of the weighing and of the delivery, the rice was near to him and under his eye. That to the best of his recollection, it was delivered before his hour of dining, which was about 2 o’clock, when he left the wharf; that he did not see the drayman carry away all the barrels, only some of them, how many he could not remember. The witness further said that after rice is weighed and no directions given to store, the wharfinger receives no further compensation.
    The plaintiff’s counsel contended, that as the defendant had received a compensation for the wharfage of the rice, he was liable for the price of the two barrels which were missing, and that no delivery to the plaintiff had been* proved.
    The defendant’s counsel insisted that after the weighing of the rice, the wharfinger was no longer liable, as he had not been directed to store ; and that at all events, he was not responsible in this case, as there had been no delivery to the plaintiff’s agent.
    Under the directions of the Recorder, the jury found a verdict for the defendant; and now a motion, was madd for a new trial on the following grounds, viz.
    1st. That the Recorder misdirected the jury in charg-' ing that in law the defendant was not liable, as the wharf age paid was not a consideration for the custody of the rice.
    2d. That the verdict was contrary to evidence, as no delivery wás proved.
   Mr. Justice Huger

delivered the opinion of the court.

I cannot express my opinion more clearly than in the •words of tlie Recorder. u It does not appear to me that the wharfage which was paid for the rice, was a compensation for its safe keeping. The legislature has allowed certain rates for the wharfage of landing of rice, and certain other rates for storing it, implying that they were different things. No other compensation then for wharfage has been paid in this' instance, and if the law were otherwise, as the defendant has proved a delivery, since when it is to be presumed that the loss must have occurred, I do not think the plaintiff can legally sustain his action.”

I am therefore of Opinion that a new trial ought not to be granted.

Justices Ray, Colcock, Richardson, Noít and Johnson. concurred.  