
    John Chickering versus James Fowler.
    A promise by a master of a vessel to deliver goods to a consignee, does not require that he should deliver them to the consignee personally, or at any particular wharf. It is sufficient if he leaves them at some usual place of unlading, giving notice to the consignee that they are so left.
    If after such notice, the consignee refuses to receive the goods, it is the duty of the master to take cave of them for the owner; unless the consignee is under an obligation to receive them, in which case they will be at his risk.
    This was assumpsit upon the following contract; — “Newburyport, Nov. 19, 1823. Received on board brig Fanny 193 barrels of onions, which I promise to deliver to Mr. Thomas Haven, of Portsmouth, he paying freight for the same five cents per barrel. James Fowler.” Trial was had ' upon the general issue
    
      
      Nov. term 1825.
    
      Nov. 9th, 1826.
    It appeared that the Fanny, of which the deiendant was master, was a registered vessel of 122 tons, and was going from Newburyport to Portsmouth to get freight for some southern port, and that she had only these onions on board as freight from Newburyport to Portsmouth. The defendant went with his vessel to the Pier wharf in Portsmouth, where vessels very frequently go to deliver goods which they have on freight for persons in Portsmouth, and gave notice to Haven that the onions were there for him. Haven told the defendant that he must deliver them at his (Haven’s) wharf, in Portsmouth, or he would not receive them. Fowler refused to do this, and a day or two after put the onions on the wharf, where they remained two nights and were frozen and injured.
    The plaintiff contended that the defendant, by the custom of Portsmouth, was obliged to deliver goods at the wharf of the consignee, or where he should direct, but the jury did not find that there was such a custom.
    He also contended that the defendant was bound by the general rules of law to deliver the onions at the wharf of the consignee, and that he was liable for his gross negligence in not taking reasonable and ordinary care of them.
    The jury were instructed, that if there was no custom as before mentioned, a delivery at the Pier wharf, which was a usual place of delivery, with notice to the consignee, was to Be considered as a delivery to the consignee ; and that if the defendant gave notice to the consignee that the onions were at that wharf for him, and he suffered them to remain there until they were injured by the frost, it was the negligence of the consignee, and not of the defendant.
    The verdict was for the defendant, and the plaintiff moved for a new trial on account of misdirection.
    
      Saltonstall, for the plaintiff,
    cited Jeremy’s Law of Carriers, 63 ; Golden v. Manning, 2 W. Bl. 916; Ostrander v. Brown, 15 Johns. R. 39.
    
      J. Pickering and Moseley, contra,
    
    cited Hyde v. Trent Navigation Co. 5 T. R. 389.
   Per Curiam.

The decision of the cause was postponed in order to ascertain whether Haven was by mercantile usage bound to receive- the consignment anywhere ; because some of the Court were of opinion, that if he was not, the defendant, upon his refusal to receive the onions at the Pier wharf, should have either transported them to Haven’s wharf, or stored them in some safe place, or brought them back to Newburyport and re-delivered them to the plaintiff. It appears now, by the minutes of the judge, that they were shipped by the plaintiff by the order of Haven. He was then bound to receive them, and as the defendant was not under obligation to carry them to Haven’s wharf, it follows, that on notice from Fowler that they were at the Pier wharf, it was Haven’s duty to receive and take care of them. So that the plaintiff’s remedy, if he have any, is against Haven.

Nov. 11th.

After this opinion was given, Cushing, of counsel for the plaintiff, stated that according to the letter of Haven ordering the shipment of the onions, they were to be delivered at his wharf, and at a limited price, neither of which conditions was complied with; and he read a deposition of Haven to that effect. The letter, he said, had been lost since the trial. Moseley observed that two notices had been served on the plaintiffs to produce the letter.

Per Curiam.

We feel bound, in this position of the case, to grant a new trial. The charge of the judge was correct so far as it went; but an important point seems to have been overlooked. The defendant not having agreed to deliver the onions at Haven’s wharf, the judge thought it would be sufficient to land them at the Pier wharf and give notice to Haven. But Haven having refused to receive them, the question is, whether he was not obliged to receive and take care of them. If, according to the testimony of one witness, he ordered them unconditionally, he was under such an obligation, and the onions were on the wharf at his risk. But it appears by his deposition used at the trial, that the order was on condition that the onions should be delivered at his wharf and at a certain price. It then becomes necessary to have the original letter. The only duty of a party, upon notice to produce a paper, is to bring it into court; he is not obliged to exhibit it till it is called for. If it appeared that this letter had been called for and not produced, the jury would be considered as having determined upon the contents, and the verdict would stand. But it does not appear to have been called for. On the plaintiff’s own suggestion, the production of it becomes important. It will be for the jury to say, whether Haven was bound to take care of the onions. The case turns wholly on that point. If he was bound to receive them, Fowler is not liable ; otherwise he is.

JSTew trial granted. 
      
       See Cope v. Cordova, 1 Rawle, 203; Abbott on Ship. (4th Amer. ed.) 249, 250; 3 Kent’s Comm. (3d ed.) 214,215; 2 id. 604, 605; Fox v. Blossom, and Packard, v. Bordier, cited in 2 Kent’s Comm. (3d ed.) 605, n. c; Pickett v. Downer, 4 Vermont R. 21; Story on Bailments, 346, 347, c. 6, § 544, 545 546.
     