
    Gordon & Walker vs. Buchanan & Porterfield.
    Where an agency is particular and not genera], the principal is not bound by any act of the agent -which is not in strict conformity with the power.
    When an agent is authorized to sell a boat, if possible, for a limited price, or if that be impossible, then to engage freight for the boat, the agent is not bound to apply to every man in the port, or any one man to sell, but must determine from his knowledge of the market, the demand for such boats, and the prices they would bear in market, whether it was possible to make the sale for the price limited.
    If in the opinion of an agent, it is impossible to perform the.first of the acts desired to be done, he may then perform the alternative or secondary act; and it will be binding on his principal.
    An offer by an agent to receive freight for a boat which he is directed to sell at a certain price, if possible, is evidence that it is impossible to sell the boat for the price mentioned in the letter of agency.
    If an agent do not employ a careful crew to navigate a boat upon which another freights goods, this will charge the agent, but does not discharge . the principal in case of loss or injury to the goods.
    If an agent execute his commission in part, for that part he binds his principal.
    If a power be given to two, as partners, by their partnership name, an execution of the power by one, in the name of the.firm, will be binding on the principal.
    Boatmen and freighters on our rivers are liable as common carriers, and are liable as such for all losses not occasioned by the act of God or the public enemies of the country.
    The exception in a bill of lading, “dangers of the river, which are unavoidable,” narrows the liability of the boat owner, and releases him from all liability for accidents and loss occasioned by hidden obstructions newly placed in the river, of a character such as human skill and foresight could not discover and avoid.
    Whether a carrier has used due diligence and caution to avoid obstructions, is a question for the jury to decide.
    If a carrier know of an obstruction before an injury is sustained by it, not known before, he must use increased caution and vigilance to avoid it; and if by any means he could remove it, he must do soy or he will be in default.
    If a boat is permitted to float upon an obstruction which is permanent, and known before the mooring of the boat, it will be evidence of negligence to charge the owner of the boat.
    This is an action, on the case brought by Buchanan and Porterfield against Gordon and Walker, in the circuit court of Davidson, for negligence in transporting goods from Pittsburgh to Nashville, belonging to the plaintiffs, by which they sustained damage. The facts of the case are these: Gordon and Walker had a keel boat in the spring of 1820, belonging to them, then in Pittsburgh, which they directed Allen and Grant, of that place, by letter, if possible to sell, or if they found it impossible to sell her, to employ a careful crew and take in freight forNashvilie. The letter was in these words: £CWehave received your favor of the 20th ult. We are astonished to find that Mr. Grant did not inform his partner what we wanted done with the boat which you received for us, as we were very particular in giving him instructions what we wanted done. We wish you to sell her, if possible, for what she cost, in bankable money; but in the event you find that to be impossible, (which you can immediately know,) we wish that you procure a cargo for her, or freight for this place, and get a careful crew and send her on as soon as possible. The boat cost us, in Brownsville, six hundred and forty-four dollars. We hope no time will be lost in sending the boat on with full freight, if she cannot be sold at Pittsburgh for what she cost, or near that sum, but would greatly prefer the sale.”
    
      Allen and Grant employed a man by the name of Reno, as master, and directed him to employ a crew, he being an experienced boatsman. They took in freight; among others, took in goods belonging to Buchanan and Porterfield. The night after the goods were put on board the boat, she filled and sunk, and the freight of Buchanan and Porter-field was damaged to a large amount. It appears by the deposition of R. Beer, that the morning previous to the disaster, the hands, in pushing the boat from the shore, found an obstacle on the outside of her which prevented them, and on running a pole underneath, it felt like a mill stone or some hard substance; that they pushed her astern and brought her upon the other side of the obstacle. The succeeding night the boat filled and sunk, on account of the keel of the boat resting on a large root which opened her seams and let in the water. It did not appear that the'obstruction had been one of long standing. One or two of the hands employed were worthless and drunken, and were afterwards dismissed. The bill of lading was signed by Allen and Grant, as the agents of Gordon and Walker, but not as soon as the goods were delivered, and not till after the boat had sunk. By its terms, the goods were to be delivered in like good order and condition as received, to Buchanan and Porterfield, the unavoidable dangers of the navigation only excepted.
    1. In the court below, the defendants’ counsel called upon the court to*charge the jury, that the agency of Allen, and Grant was special, and that they departed from it in leaving it to Reno to employ a crew, instead of doing it themselves, and thereby rendered them only liable.
    
      2. That the plaintiffs ought to have proved that Allen and Grant found it impossible to sell the boat before they were authorized to take in freight. The court, however, charged the jury, that if the defendants appointed Allen and Grant their agents, as expressed in their letter, they had authority to contract with plaintiffs for freight, and that it was necessary to prove that they had not tried to sell the boat or employed skilful hands, and that their agency was so far general as to make their acts obligato-Tj Up0n defendants as to third persons.
    The defendants also called upon the court to charge the jury, that the signing of the bill of lading after the sinking of the boat by Allen and Grant, as agents of Gordon and Walker, was a transgression of authority and a fraud upon defendants, and could not be made to affect them injuriously, as it tended to alter the rights of Gordon and Walker as they stood at the time of the sinking of the boat. But the court charged the jury, that the defendants became liable for the safety of the goods from the time they were delivered on board; and the circumstance of the bill of lading being executed after the accident, would not alter their liability if the goods had been delivered before, according to the bill of lading.
    , They lastly called upon the court to charge the jury, thát if the owners of the boat used ordinary diligence in the management of her,- and her sinking was caused by an accident that common prudence and skill could not foresee or guard against, the defendants were not liable. But the court charged, that if they undertook to deliver them safely, the unavoidable dangers of the navigation only excepted, they were liable for all accidents except such as might result from the act of God or the public enemies, and that if there was an unusual obstruction experienced on the day before the sinking the boat, at or near the place where she sunk, it was sufficient to put the crew on the look-out as to other obstructions; and that if in that case the sinking the boat was occasioned by such obstruction, the defendants were liable if that obstruction could have been reasonably ascertained by any known means.
    The jury found a verdict for the plaintiffs; a motion was made for a new trial, and the same being refused, the defendants prosecuted an appeal in error to this court.
    
      
      Thos. Washington, for the plaintiff m error.
    1st. In this case, no agency on the part of Allen and Grant ever attached. They were not authorized to procure freight for the boat, except “in the event of their finding it impossible to sell her,” and that event never occurred, so far as is shown by this record. It appears to me to be a self-evident proposition, that if an authority is to be given, only upon the happening, or not happening, of a par-1 ticular event, its occurrence or non-occurrence, as the case may be, is necessary to precede the existence of the authority; it is contended by the defendant, that the event contemplated, to wit, the not selling the boat, had happened. To that it is answered by the plaintiffs, that the non-sale merely, is not what was here contemplated; but the “finding it to be impossible” to effect a sale* which implied the necessity, on the part of Allen’ and Grant, of an exertion to sell, or of some act by which the possibility of making a sale could be actually brought to the test. It would seem strange if Allen and Grant could shift a loss from their own shoulders, upon the sole ground that they neglected to do what they were expressly required to do, before their authority for doing the act which occasioned the loss, was to take place. The only ingredient in this matter, which gives any semblance of plausibility to the reverse of my proposition assumed tinder this head, is, that the event, in reference to which, Allen and Grant were to have power to procure freight, is described by the use of negative terms, or in other words, that the instrument which delegates to them their power, speaks of the non-existence of a certain thing, to wit, the boat’s “not being sold.” But, that is a very garbled view of the case. The letter of Gordon and Walker on the subject, speaks of the means to be used by Allen and Grant to accomplish a sale, which means shall prove ineffectual before they are to have any authority to procure freight. It speaks of endeavors to be made by them to prevent the necessity of procuring freight; to bring about the very thine;, which would be utterly inconsistent with , , ° , r the thing now relied upon, to suit the non-occurrence ot a sale, to-sustain .the authority of the act done. It speaks of the procurement of freight as the alternative in the last resort; and so far from countenancing, even by the remotest implication, the idea, that freight may be procured as the primary step, or that a discretion may be exercised, either to sell, or to procure freight, it is therein asserted, that the sale must be made, if possible. And if that cannot be done, (not if it is not done,) then, and then only, is freight to be procured. The terms in this respect, are too explicit to be misunderstood, .and they are too imperative to admit of any departure from them.
    If Allen and Grant could procure the freight when they did, without any exertion to sell, they could have- procured it the very moment they received the letter of Gordon and Walker, as the primary step in the execution of their agency. Upon that construction, they had power, either to sell, or to procure freight, at their option; or in other words, to dispense entirely with one part of their authority, and that the most important part, and the exercise of which was not only preferred, but required, before the other part accrued at all.
    The construction that would make Gordon and Walker liable for this loss, without any attempt to sell, would also make them liable if Allen and Grant had rejected an offer to purchase the boat, at the price required, and then have gone on to procure freight, or whether they could have sold or not.
    The provision in the power in question, relative to the sale of the boat, was a constituent part of the power itself, or of the essence of. the power. It does not come under the description of instruction relative to the mode .of executing a power.
    2d. The engaging of this freight, was not the act of Gordon and Walker. When it was engaged of Riddle & Co. the agency was not shown, or spoken of, or alluded to, but Allen engaged it expressly for Allen and Grant. Under what passed between Allen on the one part, and Riddle & Oo. on the other, all of which was professedly in the name of Allen and Grant individually, the goods were put on board, and that act was the consummation of the contract. In that situation of the property, and under the contract as it then stood, the disaster happened, by the legal effects of which, the rights of these parties are to be determined. Up to this point of time, Allen had not disclosed his agency, or professed to act in the capacity of an agent, but he says, that although he did the act in his own name, he intended it as the act of Gordon and Walker. Can any man doubt, that at this period, Allen and Grant were individually responsible to Buchanan and Porterfield, if the loss did not proceed from a cause that would exempt a common carrier? Surely, none. Then, the signing of the bill of lading after-wards in the name of Gordon and Walker, and which was antedated, and by which a new contract was made, containing an exemption as to the perils of navigation, was a fraud upon Gordon and Walker, the object and direct tendency of which, was to free Allen and Grant from a liability that they were then under, and to devolve it on their principals. This was done with the knowledge and consent of Riddle •& Co. who accepted the bill of lading being privy to all the circumstances. They were the consignees of Buchanan and Porterfield, were participates in the fraud, and consequently their principals, Buchanan and Porterfield, are answerable. 8 Sergeant and Rawle: Paley on Agency, 228, 229.
    3d. The agency here conferred, was a special agency, which was not strictly pursued, and what was done was therefore void. Livermore on Agency, 107, 108, 109. 3 Johnson, 48: 5 Johnson, 58: 7 Johnson, 390: 1 Taun-ton, 347: 1 Ex. Rep. Ill: 3 Term Rep. 757: 3 Connecticut Rep. 183: Paley on Agency, 2,162, 150. Instances in which this authority, which is shown to be a special °iie, was not pursued: 1st. In procuring freight, without any attempt to sell the boat. 2d. Instead of pro-* viding a careful crew themselves, to leave that to Reno. 3d. Instead of executing their authority themselves, devolving the whole execution of it upon others. 4 Campbell, 183: Paley, 148: Sugdenun Powers, 166-7. 4th. Instead of procuring sound freight, procuring that which was notoriously unsound, and receipting for it as in good order.
    4th. The disaster was occasioned by a peril of navigation. 5 Barnwell and Alderson, 174: 3 Barnwell and Alderson, 73: 12 East, 64S: Lex Mercatoria Americana, 273.
    5th. Gordon’s receiving the boat in Cumberland river, and paying off the sick captain, amounts to no ratification; because he did not that act, with full knowledge, nor indeed, with any knowledge at all, of what Allen and Grant had done. 1 Livermore,Ntt.
    By the bill of lading, the property does not appear to be in the plaintiffs, Buchanan and Porterfield. Com. on Contracts, 532: 3 Salkeld, 290: 2 Campbell, 36: Jones on Bailment, 107, h.
    
      Geo. iS'. Yerger, argued on the same side.
    
      F. B. Fogg, for defendants in error.
    That the court were correct in the first point of the charge, see article, principal and agent, 2 Dane’s Abridgment, ch. 59, article 2, sec. 56; article 3, and cases cited. That the principal is liable for his agent’s negligence, but not for his contracts, see Fenn vs. Harrison, 3 Term Rep. 760.
    That there was no error in the second point of the charge, see 2 Comyn on Contracts, page 286, 329, and cases cited: 2 Kent’s Com. 468: 5 Esp. R. 41. That the responsibility of carriers attaches as soon as the goods are received on board by the master, see also Abbott on Shipping, 226.
    The first count in the declaration in this case is on the bill of lading, the second on the defendants’ liability as common carriers. Of course, if the signing the bill of lading after the sinking of the boat was invalid, the defendants would be liable as common carriers, in the same manner as if there had been no bill of lading.
    That there was no error in the third point of the charge, see as to the liability of common carriers, Eliott vs. Russell, et. ais., 10 Johns. Rep. 1: 6 Johns. Rep. 166, 180: Colts, et. ais. vs. M’Mechen, 8 Johns. Rep. 218, 248: 4 Bin. Rep. 127: 11 Johns. Rep. 107: 1 Wilson, 281: Banaer and Whig of March 24th 1827: Peck’s Rep. Craig vs. Childress, 270. For these and other reasons, to be adduced in argument, the counsel for the defendants in error, think that no new trial should be granted.
   Gkeen, J.

delivered the opinion of the court.

It is insisted by the counsel for the plaintiffs in error, that Allen and Grant exceeded their agency in this transaction, and that therefore they are not bound by the undertaking of their agents. We are of opinion that the agency created by the letter of Gordon and Walker was a particular, and not a general agency, and that Gordon and Walker would not be bound by any act which was not in strict conformity to the power. The question, therefore, is, whether Allen and Grant exceeded the power vested in them by the letter, so far as this case is concerned. The letter authorized them to procure freight for the boat, and to send her to Nashville. But it is said that this authority was given in the event she could not be sold, and until there is evidence that it was impossible to sell her, the authority to engage freight does not appear. It must be observed, that the agency of Allen and Grant, in relation to this boat, consisted of three several acts, which were not to be performed simultaneously, but which from the nature of those acts were precedent, one to the other. The boat was to be sold if possible; but jf that should be impossible, then the power to engage the freight was communicated; and if freight could be engaged, then it would become necessary to employ a crew. The vessel was not to be sent empty to Nashville; consequently the necessity or propriety of engaging a crew, must be seen to have been dependent on the fact whether a load could be obtained for her. Then as to the first act to be done, the selling the boat if possible. The words “possible” and “impossible,” as used in this letter, are to be understood in a qualified sense. If taken in the most extended meaning, the impossibility of selling the boat could not be ascertained until personal application should be made to every person who was capable of contracting, in Pittsburg, and they had each refused to buy. The absurdity of supposing this was intended, must strike every mind at the first blush. What then was intended? Surely nothing more than that these agents should determine from- their knowledge of the market, the demand for such , boats, and the prices they-would command in market, whether in their judgment she could be sold for the $644, the price limited. If they might thus determine, after having offered to s.ell to one, two or ten individuals, surely they must have had the same power of determining without offering her at all. The impossibility of selling, would no more have been established by the offer to, and refusal of ten individuals, than if she had not been offered at all; for there might by possibility, have been fifty other individuals to whom she was not offered at all, who would have purchased. The probability of her sale would have been lessened by such offers and refusals, but the possibility of such sale, in the extended sense sought to be placed on the term, would have been no more established. It follows then, that the meaning of the letter is, that the possibility of making sale, was to be determined by the judgment of Allen and Grant, from their supposed knowledge of the market; therefore, when they decided that the boat could not be sold, the “impossibility contemplated in the letter existed, and their otter to receive freight was evidence of that decision, and consequently evidence that they were acting in strict accordance with their authority.

The objection, that Allen and Grant did not employ a careful crew, and that they committed that duty to Reno, instead of performing it themselves, has been already answered. The owners of the goods had no control over that matter. They had no right to demand that the crew should be employed before they delivered their goods. The contract for the crew, was not an act to be done simultaneously with the contract for the freight., The contract for the freight they had a' right to make, and if after-1 wards they either failed in some other part of their agency, or acted in violation of their authority, the first contract made in pursuance of their authority is not affected thereby. s For if an agent has executed his commission but for a part, he obliges his principal so far; as if the commission were to purchase fifty snares of the stock of a bank, and the agent contracts with a person who is the owner of but thirty, for the purchase of that number, intending to obtain the other twenty from some other man, the principal will be bound by that contract, although the agent afterwards fail in his attempts to buy the other twenty. Liv. on Agency, 99.

It is said the power was given to two, ' and executed only by one, and that his act alone, is not binding. This principle applies where the power is given to A. B. and C. D. by name as individuals. Although they may be partners, they cannot act as such, but must act jointly as individuals. Not so if the power is given to B. and D. describing them in the style of their partnership concern. In such case the act of one in the name of the firm, is the act of the firm; is done by both, and is in strict pursuance of the power. Such is this case.

Upon the merits of this case, but little stress has been laid in the argument on the objection to the charge of the court. In the charge of the court the law is correctly laid down. Boatmen on our rivers, are liable as common carriers. The law compels them as such to account for all losses not occasioned by the act of God, or the public enemies of the country. This rule, though apparently severe, is salutary and necessary; as necessary to be applied to our rivers as to the high seas. Every thing may be said to be mediately or immediately, the act of God. But this exception has acquired, by a long course of concurrent adjudication, a limited and definite meaning, as applicable to this question. It means disasters with which jthe agency of man has nothing to do, such as lightning, ■ tempests, and the like. The exception in this bill of lading, of i£the dangers of the river which are unavoidable,” narrows down the liability of the owner of the boat. Many disasters which would not come within the definition of the act of God, would fall within the exception in this receipt. Such for instance as losses occasioned by hidden obstructions in the river, newly placed there,, and of a character that human skill and foresight could not have discovered and avoided. The judge in this case, ' properly and fairly left it to the jury to determine whether the obstruction in the case, under consideration was of that character. If they had discovered on the evening before the disaster happened, that there was some obstruction at the landing not known before, the judge correctly said, this ought to have increased and stimulated the vigilance and caution of the hands composing the crew, and if by any known means they could have discovered and removed the obstruction, they ought to have done so. But in this case, it appears to the court, the crew was guilty of great carelessness and inattention. This root or stump did not wash down in the night. The witness says it was heavy and would .not float; that it would require a strong current to move it. Such was not the character of the current the night of the disaster. On the contrary, the river was falling. This fact too they knew, and It ought to have made them the more vigilant. They pushed the boat back, when they discovered the obstruction, and brought her up on the other side thereof; but it is manifest she was permitted to float down on the same obstruction, and pressing her side against it, was turned outward, and thereby filled with water. Let the judgment be affirmed.

Judgment affirmed.  