
    J. C. Singleton, v. O. B. Hilliard and J. P. Brooks.
    When the plaintiff has a prima facie case, that must pass to the jury, and not be turned out of Court by a non-suit.
    Although the common law liability of carriers be controlled by the custom of excepting fire as a risk in the bill of lading, the carrier should be held to strict proof of diligence and care in avoiding loss to the owner by so dangerous an element.
    Customs and usages should be plain and distinct, ancient and certain, before men should be required to know them, as constituting the law of their contracts.
    He who would, by virtue of a special contract, derogate from his legal liability, is bound to give explicit information to all, of the precise limitation intended.
    Without the concurrence expressed, or plainly implied by the words or conduct of a party, he cannot be bound by the acts of another apparently assuming to be his agent, nor by a mistaken conclusion drawn by a third party, of such agency.
    Tried before Mr Justice Butler, at Charleston, May Term, 1846.
    This was an action to recover damages for the loss of 140 bales of cotton, that were consumed by fire on the defendant’s boat, the steamer Kershaw. The boat left Columbia some time in the day of the 14th December, 1843, and arrived at Singleton’s landing, twelve miles below; where about dark the plaintiff’s cotton was taken on board. Some time in the night, the boat took fire, and it, with a large cargo of cotton, was consumed. How the fire originated, could not be well ascertained. It spread, according to the evidence of those that were present, with such rapidity, that all efforts to extinguish it were wholly unavailing. T he plaintiff contended that the defendants, on their common law responsibility as carriers, were liable for the loss; or should the common law liability be changed by usage or contract, that they were liable for negligence. On the contrary, the defendants contended that their liability at common law was limited and controlled by usage and contract —and that they had not been guilty of such negligence as to render them in anywise liable. In the beginning of the season, about the middle of September, the defendants commenced running their steamers Kershaw and Richland, between Columbia and Charleston, and Camden and Charleston. In the first instance, they assume the responsibility of insurers, but from some cause, perhaps from an opinion of some of the merchants, that they could not meet with sufficient promptness any loss that might be sustained, they made other arrangements for the insurance of freight. These arrangements were the subject of much controversy. Mr. Richard Sondley was the agent of the boats in Columbia, and Mr. Villepaigue, in Camden; and it was through them that all such arrangements were to be carried into effect. How far the plaintiff’s rights may be affected by the agency and conduct of others, depends on his connection with them. Having taken no bill of lading, before the cotton was burnt, there was no written evidence of a contract to control the general implication of the law. If there was any contract at all, it depended upon what took place, in a great measure,between Richard Sondley andRichard O’Neall; as it was contended on the part of the plaintiff, that it was through their agency the contract was made in reference to the shipment of the cotton, the presiding Judge therefore gives their own statement in detail.
    Richard Sondley resides in Columbia, and was the agent of the defendants, for taking in freight and making contracts in relation to it. Richard O’Neall came to his counting house with the plaintiff, and spoke to him about taking the cotton— 140 bales. O’Neall, after introducing the plaintiff, said he wanted 140 bales of cotton to be taken in the next boat. Witness replied—as a customer, you have a right by waiving your claim, to ship other cotton under your control, to send down this cotton in one of the boats that were coming up. O’Neall said, can it go by the first boat? Witness said that was uncertain, as it would depend on what Anderson would say, (an agent of witness’s,) who was at Granby; but remarked, if the first can’t take place, the second can, or it can go in open boats. Singleton replied, I prefer steamers. O’Neall then said, well I suppose, if it is at the landing, one of the boats will take it. Said O’Neall had been in the habit of shipping for others, and would write to consignees, giving them instructions. The witness here produced a letter, dated 12th December, from O’Neall directed to Adger & Co., advising them of the shipment of certain cottons; said he had shipped some by rail-road for himself and others; 2 lots by Richland and Kershaw. Singleton’s 140 bales at landing. He may call on you for advance as he did last year; let him have it, he will return the same to me, &c. The letter enclosed a bill of lading, signed by Sondley, as agent, shipped by R. O’Neall on board Richland, 106 bales in good order, &c., to be delivered in like good order, unavoidable accidents and fire only excepted, freight at 75 cts. date 8th December. Other receipts of 10th and 11th of same purport. One by Solomon’s boat—unavoidable accidents only excepted. Had received instructions from owners of boat in the early part of season, for a certain rate of freight, cotton would be insured, and had acted on them in loading one steamer. After that received other letters, one dated 7th November, which was not acted on. Purport of letter, that cotton would be insured by arrangements with insurance office, &c. On the 9th November, Hilliard arrived in Columbia, bringing with him a letter written by William Martin, as agent of the insurance company; it was superscribed to Sondley and Villepaigue —the agents of boats. The purport of letter, (it can be referred to,) was, that company would insure cotton from Columbia and Camden, at the half of one per cent., each bag to be valued at $22, the insurance to attach so soon as cotton is on board, provided shipper gives notice to agents in Columbia and Camden, who will insert the same on freight list and bill of lading, on the receipt of which, premium to be paid in Charleston, on a return of amount insured. The witness said, under this letter, he gave general intelligence to the merchants, that by 12⅜ cents in addition to common freight, they could have their cotton insured. (12-J cents being about ⅜ per cent, on the value of a bale.) No one, however, ever availed himself of this provision. He said he conversed with O’Neall on the subject, and thinks he must have been aware of the arrangement. The witness has lived in Columbia, since 1834, and that during that time it has been common to except the risk of fire in bills of lading. Freight list produced in Anderson’s hand-writing, and dated 13th December. It was made out in its details on the morning of the 15th, before he heard of the destruction of the boat. After it was made, got the intelligence and saw the list, and told Anderson to make the entries that were in it. At that time the rate of freight was 75 cents; shippers taking their own risks; 12⅛ cents more would have procured insurance; bills of lading at rate of 75 cts. generally contained the exception of risk by fire. At the beginning of season, freight of steamboats, $1; after October freight reduced; rail-road took freight at $1, when boats took at 87⅛ cents, and took all risks; that is road did; when rail-road took at 87| cents, boats took at 75. On the morning this list was made out, understood rail-road had reduced rate; rail-road had reduced the day before; advertisement in Camden paper, here was brought to witness’ attention; and ho said he had never seen such notice. The purport oí this notice may as well be here stated. By an advertisement in the Camden Journal, the agent there, published that all freights of cotton would be thereafter insured free from additional costs, and under this, it was generally understood that the ordinary rates of carriage, entitled the shipper to insurance. The agent said he had inserted the advertisement by the consent of defendant, and under the authority of the Martin letter. It was the duty of R. Anderson, as clerk and under agent, to contract for freight, make out freight lists and fill up bills of lading. He, Anderson, said, not having heard of the conversation between O’Neall and Sondley, he could not speak of it; and was surprised when O’Neall spoke to him about the Richland’s taking 140 bags of cotton for Singleton. O’Neall said, well it must go by the Kershaw; and after conversing with Sondley, the witness said it was concluded to take the Singleton cotton. Swindler became dissatisfied, saying he was customer; O’Neall then withdrew 100 bales in order to let Singleton’s go, and said put shipper thus, “R. O. to James Adger,” with mark J. C. Singleton. And it was accordingly so inserted in freight list. He said if the boat had taken all risks, the freight would have been 87⅛ cts., as it was, 87 was entered.
    
      Richard O’Neall, on the part of the plaintiff,
    gave the following evidence: That the plaintiff is a planter on the Congaree, and is in no wise connected with commerce; that as a merchant^ he had furnished supplies for plaintiff; that it had been the habit of the plaintiff to send his cotton by pole boats. He came to witness, and asked him to give him some directions how he could get his cotton carried to Charleston, or applied to him to have it carried. Witness and plaintiff went to Sondley, and witness introduced the former, and said he wishes his cotton carried to Charleston by the first opportunity: Sondley said he did not know about it going in first boat, and said something about pole boat. Singleton replied, I want my cotton to go by steamer. Sondley then said, well have your cotton at the landing by the 8th, and it shall go. Witness understood cotton was to go by the first boat, Richland, which had come up first. He said he had no authority from Singleton to ship for him, nor was he his agent to make any contract, and had nothing to do with the contract, except to introduce Singleton to Sond-ley. Sondley said nothing about insurance, nor did he say any thing at all about the difference in rates of freight. Anderson took Swindler’s cotton in place of witness’s, to accommodate plaintiff. What witness did, was as a friend in the way of accommodation. Said it was common to insert the fire clause in bills of lading. He said Sondley may have said something to him about the Martin letter, but what it was exactly he could not say; but he said he had made no communication of such conversation to Mr. Singleton, and he had no reason to suppose Singleton knew any thing of the usage under the letter, or in reference to it. Witness said, where the boat was entirely responsible, he never thought of procuring insurance. Mr. Adger said he was Singleton’s factor, and that O’Neall had nothing to do with Singleton’s cotton after it was received.
    There was a great deal of evidence as to the usage of inserting the exception of fire, and many bills of lading were produced that contained it. There were three, however, produced that had omitted the clause. In general, it was the habit of boat to insert the clause. Some witnesses said that they had been assured in general terms, that their cotton was insured. In speaking of sending cotton down, Sondley would say sometimes, your cotton shall be insured, &c. From the different arrangements that had been made during the same season, there was evidently some confusion as to the understanding on the subject. As to the circumstances under which the boat was consumed, they were so nearly the same as those that have been reported to the Court, in the case tried by Judge O’Neall, that it is not deemed necessary to repeat the statement here.
    His Honor refused the motion for a non-suit, because it was proved that plaintiff’s cotton had been deposited at the landing, and that it was missing shortly afterwards, with many signs about the place that cotton and boat had been burnt. No mind could have resisted the conviction that the cotton was burnt when the boat was, and the wreck of that was seen on fire. In his charge to the jury, he submitted the following propositions:
    1. Before the plaintiff could be subjected to all the liabilities of a contract entered into by Sondley and O’Neall, the jury should be satisfied that O’Neall was the legal agent, or authorized representative of plaintiff. In that view, he said Singleton would be bound by the knowledge and conduct of his agent; and for all legal purposes, the contract might be regarded as having been made by plaintiff, with Sondley, in reference to O’Neall’s knowledge; and then the question was presented, was there such usage recognized and acted upon under the Martin letter, as would limit the common law liability of the carrier. The usage in Camden under the same letter, was different from that contended for by Sondley in Columbia. And the fact that it was not published in Columbia, left the matter uncertain. He further stated to the jury, that the conduct of Sondley had not, in reference to this usage, to wit, to except the risk of fire, been in every instance consistent; but he said if O’Neall knew of it, Singleton might be bound by it.
    2. If Singleton had made the contract for the shipment of the cotton, and was to be regarded a stranger to the transactions between O’Neall and Sondley, then his common law rights ought not to be affected, unless the usage spoken of was so uniform and generally known as to have come.to his knowledge; that in that event he might be bound by it; and the jury would have a right to regard him, as having made his contract in reference to it.
    3. Assuming that the principles of the common law had been controlled by a contract to be inferred from usage, then he said the defendants might avail themselves of such contract, by showing that the cotton had not been burnt by their negligence. And upon this subject, he instructed the jury in the terms ofthe opinion of the Court of Appeals, delivered at its last session, on precisely the same question. He summed up for the jury all the evidence that had been given. They returned a verdict for the plaintiff.
    The defendants appealed and moved for a new trial, on the following grounds:
    1. Because his Honor erred in charging the jury, that in order to affect the plaintiff with the knowledge ofR. O’Neall, in reference to a limitation of defendants common law liability as carriers, they must believe that R. O’Neall was in fact the agent of the plaintiff, employed by him in shipping this cotton; whereas it is respectfully submitted, it was sufficient for the defendants to prove that the conduct of the plaintiff and Mr. O’Neall, the witness, together, justified the belief that such an agency existed.
    2. Because the Judge charged the jury, that the usage of trade at Columbia did not affect the plaintiff, unless it were shown that he was acquainted therewith; whereas the defendants submit, that as he resided near Columbia, and made his contract there with the advice and in the presence of Mr. O’Neall, he was bound by such usage, and the defendants had a right to presume that the contract was made in reference thereto.
    3. Because his Honor erred in charging the jury, that even if they thought Mr. O’Neall was plaintiff’s agent, and the contract was, with the exception of loss by fire, the defendants were bound to prove how the fire originated, as well as that it did not occur from any neglect or want of diligence on their part.
    4. Because his Honor refused to non-suit the plaintiff, when he closed his case, although there was not then the slightest evidence of defendants contract to take the plaintiff’s cotton, or of its delivery to them.
    Memminger, for the motion.
    The question is not of the liability of a carrier, nor of diligence, but on the claim of summum-jus. There are two capital errors in this case committed by the circuit Judge. There is no bill of lading or contract that is to be ascertained. We insist, the contract is to be made out by'the usages of trade, or by Martin’s letter. Usage is a part of the contract, unless negatived by express contract—and that, whether the parties are strangers or privies. The usage governs the contract. The Judge erred in charging that there should be knowledge of the usages to bind the party. Custom is not usage. Lex Mercatoria is part of the law, and binds all; 1 Mill’s Con. Rep., 304 and 305. Local usage of trade and the habits of a party also differ. In this case, the usage to except fire is a general usage; but Mr. Martin’s letter is a special contract. Custom is local, general habit—usage is the habit of one, to be complied with by those who deal with that one; Lex Mercatoria is usage and custom grown into general law. Special notice of the usage of trade is not necessary; it affects the contract; Rushford v. Elfe, 6 East., 519; 4 Stark., 452. The custom enters into the policy of insurance; Blanche v. Fletcher, Doug., 241. A custom like a statute, not private, must be known at the peril of the party to be affected by it; (48 E. C. L. R., 309; the Queen v. the Inhabitants of Stoke on Trent,) 1 E. C. L. R., 4. It was a usage in Columbia that risks by fire should be excepted; the Judge confounded the usage with the contract; Harth ads. Johnson, 1 Bail., 482. In this case usage did set aside the common law, or law merchant. The Judge erred as to the law of agency. If the conduct of one induces the belief of his agency, he is, in effect, the agent. Express agency is not necessary. No one is to know the instructions of the principal, and one may act as agent contrary to them. The law fixes the character of the agent from his acts; Pickering v. Bust, 15 East., 38; Dyer v. Pearson, 3 Barn. & Cress., 38. The Court will imply agency; Smith v. Guoney, 2 Spear., 354; Whitehead v. Tucket, 15 East. Rep., 400. Third persons are not to know of the private understanding between principal and agent; Paley on Agency, 167-68.
    Bailey, contra.
    
    Rogers v. Madden, 2 Bail., 321. There was evidence sufficient in this case to go to the jury and prevent a non-suit. (The refusal of a non-suit is one ground of the appeal.) The Judge on the circuit did touch on all the points in consideration, and fairly and properly leave them to the jury. It was not proved that the habit to except fire in bills of lading was either uniform or general. It should have been so uniform as that Singleton should have known it. No usage, contrary to law, can grow up without twenty years acquiescence. Parties may alter usage by contract, but not written law by usage, unless such as above described. It must be proved by a carrier that there was no negligence on his part. The proof is in his power, and it is no hardship on him to do so. Ewart v. Street, 2 Bailey, 157.
    M’Cready, for the motion.
    Sondley was not only the agent of Hilliard, but of Martin also, who was the chief agent of the insurance company. The arrangement as to the terms of shipment, was made known to the merchants of Columbia, who could insure, or not, as they chose. Singleton was not a merchant, but O’Neall was, and was his agent, and knew of the above mentioned arrangement. Dyer v. Pearson, 48 Barn. & Cress., 309. Circumstances justified Sondley in the belief that O’Neall was Singleton’s agent; Story on Agency, sec. 93. Apparent authority is the real authority and matter of proof. The instructions of the Judge, cut off this proof; 2 Kent’s Com., 620 and 621. If O’Neall was agent, then notice to Singleton was not necessary, (we could have proved this; we now, therefore, ask for a new trial; 1 Black., 74.) People were indulged in their customs' in certain places, when the common law was written. No custom is old in this country. Custom should be tried by a jury; 1 Black. Com., 74; and 2 do. Title by Prescription, 267. Each must be immemorial—the one personal, the other common. The usage explains the contract. A convenient time will establish a local usage. Twenty years is, with us, a terminus of peace. The question in this case, is, was the time sufficient and understood? U. S. v. M’Daniel, 7 Peters, 1 and 28. Usage there was allowed to be proved. We are protected, by the fire clause, from showing how the fire arose.
    Petigru, contra.
    
    Our defence is, that there was no proof of usage—no knowledge on the part of Singleton, of Sondley’s agency, and no proof to rebut carelessness; 6 East., 519. A party may be fixed by an implied contract, but to warrant this a usage must be shown, so general as to afford a safe ground for such a conclusion; 2 Comyn onCont., 325. The exclusion of fire is very ancient; 2 Kent’s Com., 607. Notice must be given of special exception, or it may be proved by the contract itself; Kiddell v. Farr, 6 Tread., 78. There was no custom, nor could it have been established by so few, and in so short a time. There was no proof of Singleton’s knowledge of such usage, and if O’Neall specially agreed for him, he should have had power given him by Singleton to do so. Agency is to be proved as well as any other fact. Yery slight reasons may induce a man to think of one as the agent of another, when he is not, and when another man might think otherwise. Singleton was present himself, and needed no agent. The letter to Adger never was seen by Sondley, for it was written after the supposed contract, and could not mislead. How can there be a general custom of a special exception? The party is not bound, but on proof of notice brought to him.
    Hunt, for the motion.
    The real question in this case is, what would have been the bill of lading for Singleton’s cotton, had time been allowed to sign and deliver it? The habit was, after the boat was off, forthe clerk to make out the invoice and sign bills of lading, and under the circumstances, O’Neall; who stated he was shipper, and directed the cotton to be marked R. O., would have received the bill of lading. And all the evidence is clear, that like the other bills oflading, it would have excluded “fire” as one of the risks. Now, the accident that news of the burning took place and was announced before the bills were signed, ought not to alter the liabilities. Supposing that clause to be in the bill of lading, the case is clear. The cotton was burned, and no act of carelessness was proved, but all the testimony shows that the fire arose from some unknown cause, as such fires usually do—for if the cause were known, it could generally be extinguished in the beginning. The plaintiff claims, that as there was no bill of lading, he is entitled to claim under the common law. But the true principle is this: the use of fire in transportation is of recent origin, and has given rise to a new course of trade. The increased danger from fire has led to a division of risk. The carrier is still bound to indemnify for losses other than the act of God, as heret ofore; but the danger from fire is insured against by companies with fixed capitals and ready money, and so a usage has grown up to that effect, and “fire” is now added to dangers of navigation, &c. And every person shipping by steam boat is bound to know this usage—at least he must be supposed to be content with the usual bill of lading where fire was expressly excepted. But in fact, Mr. Singleton left the shipment of his cotton to Mr. O’Neall, and should be bound by just such a bill as O’Neall was in the habit of taking, and the sample produced shows that he excepted “fire.” O’Neall says it is not true that he was Singleton’s agent, and yet all his acts show he was. He, a shipping merchant, went to the agent of the vessel, and Mr. Singleton, who owed O’Neall money, went with him, and there it was agreed that O’Neall would withdraw some other shipment of his, and give the preference to Singleton’s cotton. O’Neall, when asked who should be put down as shipper, said, “pat shipper R. O. to James Adger, marked J. C. Singleton.” Mem. shipped receipts signed, “dangers of navigation excepted.” This was intended, and if the fire had not been known, would have been so signed. The clerk says the rate of freight was 75 cts. for such bills of lading. O’Neall followed up this by writing to Adger & Co., date 12th December, 1843, advising of the shipment of Singleton’s cotton, and indicates the fact that the advance was due to himself, O’Neall. He was thus agent, and with an interest, and ought to be considered as shipper, and the bill of lading as his. There was no mystery in the arrangement of Hilliard. He procured a counter insurance at 12⅛ cents from the agent of the Augusta Insurance Company, and then on receiving an equivalent from the shippers, he undertook to insure against fire; but if shippers did not pay that premium, they took the risk themselves, or insured elsewhere. So that the risk from fire was separated from the carrier’s risks, and provided for by insurance—a usage of the same age as the change in the mode of transportation by the introduction of fire, as an agent. No greater age is necessary. The Court erred in not telling the jury that O’Neall acted as shipper, and was bound to receive such a bill of lading as he usually did, &c. The accident of the fire so soon after shipment, alone gives the plaintiff any claim. Liad O’Neall received his bill of lading, he would have been bound by the exceptions of fire. Defendants ought not be injured by mere accident.
   Richardson J.

delivered the opinion of the Court.

The general legal proposition of the appellants is, that the ship-owners, Hilliard & Brooks, were exempt from their liability at common law, for the accidental loss by fire, by reason of the established usage of carriers in the particular trade, excepting them from such common law liability: or in default of such usage, that they were still exempt, by reason of express notice, that they were not to be held liable for such losses by fire, unless upon payment of certain specified and additional freight. If there was neither usage nor special contract express, or implied, arising out of such notice, to protect or exempt the defendants from the general liability of common carriers for such losses, then the plaintiff’s case would be too plain for a difference of opinion; and the verdict, legal and right, upon well established principles in the law of common carriers—that they are liable for all such losses by fire. Upon the fa cts and legal merits of this shipment and loss of t he cotton, the difficulty of the appellants is, to show how their case differs from the common case of a shipper, whose cotton is received by a boat, upon the implied contract to pay customary freight upon the safe delivery at the port of destination, but which delivery has entirely failed by some accidental fire consuming the entire cargo.

If we take Singleton’s own words, and conduct alone, his delivery of the cotton, and its receipt by the steamer Kershaw, and the destruction of ship and cargo, that so quickly followed; this case is simply the case I have just supposed, and the defence would be merely specious from accidental circumstances, and of course unavailing.

But on the other hand, if there was either a usage, generally understood in such carrying trade, by steam ships between Columbia and Charleston, which would exempt the owners from losses by fire; or a general and well understood notice given by these particular carriers, Hilliard & Brooks, that they were not to be held liable for such losses by fire, without the payment of a specified sum, additional to the usual freight to be paid by the shipper; then, that is: in either the event of such a usage or such a notice, being first established, the defence would be legal and meritorious. Because, then, the usage, and equally the notice of the exception of losses by fire, would have constituted a part of the implied contract, between the shipper and the carriers, and so far as such usage or notice goes, would have limited the otherwise general and legal liability of the carrier for all losses, unless from what is meant by “the acts of God or the enemies of the State;” to neither of which classes of exemptions does the present loss belong. Upon the merits, therefore, of the appeal to this Court, we have to inquire:

1st. Whether the jury have found for the shipper without regarding the supposed usage of exemption from liability in such cases;—or 2d, have so found, notwithstanding such notice on the part of the owners, of the exception of losses by fire, which was evidently intended by Hilliard’s instructions to Sondley, in his letter of 7th November, 1843. The second of these inquiries (notice) will, of course include the question of fact—whether Mr. O’Neall, who may be assumed to have received the proper notice, was the authorized agent of Mr. Singleton, in this shipment of cotton.

On this head, it is conceded, that notice to such an agent, would, in effect, be the same as notice to Mr. Singleton, the principal. And, lastly, the Court has to decide upon the objections to the instruction of the circuit Judge to the jury, irrespective of the intrinsic merits of the defence set up on trial before the jury. For, if in either of the points of judicial instruction to tbe jury, tbe Judge bas erred in law, tbe jury may bave been led into error, in their verdict, and that would be ground for another trial of the merits.

Proceeding, then, to tbe first ground to be considered, namely: The custom and usage of carriers and owners of steam boats, to be exempt from losses by fire. 1 must refer in order to avoid too much reiteration to the opinion of the Court, upon this custom, to the case of Patton v. Magrath & Brooks, in Dudley’s Rep., 163. To that opinion, I will add, that a custom or usage, intended, as in this case, to alter established rules of law, must be of very long standing, so as to imply the general acquiescence of all parties; Co. Lit., 113; whereas, this custom or usage of exemption from losses by fire, is not only of very recent origin, but has been continually resisted. See Patton’s case, in 1838, and lately, Swindler’s case, 2 Richardson’s Rep., 286; for proof of much resistance to it.

One of the characteristics of a good custom, says Coke Lit., 114, is this: “not subject to contention and dispute.” Another mark, he says, is “continuity; that is, without interruption of the right. But, as proved in the very case before us, the bills of lading often omitted the clause of “exception of losses by fire.” The Judge notices three instances.

Customs must also be certain:—-not like the rejected, because uncertain custom, of paying either two or three pence in lieu of Tithes; 2 Term Rep., 58; 1 Roll. Abi., 565; for full modern authorities upon these heads, see Wiggollsworth v. Dallison, Doug., 201, and the collection of cases in 1st Smith’s Leading Cases, 401. Upon the head of certainty, I would here ask— is this supposed custom of exemption to be bottomed upon the assumed right of the carrier, to make out bills of lading at 75 cents per bale of cotton, instead of 87|, at the option of the owners, making themselves liable in the cotton, and the shipper in the former? Supposing this right in the owners, what chance muid Singleton have to choose, which of these rates he would pay? i. e., without being informed in the plain meaning of the instructions of O. B. Hilliard, in his letter of 7th November, 1843, which is in the following terms: “I wish you to give this information to all that ship by the boat, that there can be no mistake, that the 12⅛ cents is in lieu of the boat insuring the cotton. Now, if Singleton had actually received this information, directed to be given “to all that ship by the boat,” he might have embraced one or the other of the alternatives offered: and then, although the usage and custom was too recent, too interrupted, too uncertain and too unknown to limit the established liability of common carriers; yet, upon the next, and certainly more reliable ground of the defence, such information to Singleton would have borne cut the appellant’s motion for a new trial. Of course I allude to the notice intended by Hilliard for all who shipped by the boat; that they must pay 12⅜ cents additional freight, to make the owners liable for losses by fire.

Upon this second head of the defence, the law is plain and conceded. It was unanimously laid down in Patton’s case, to wit: That carriers may limit their common law liability, by contract, or express personal notice to their shippers. It may also be conceded, at least for the present purpose, that Mr. O’Neall had the information and notice required to subject himself, or his principal, to the exception of losses by fire, intended by the owners of the Kershaw, and set forth in Hil-liard’s letter. But the whole question respecting the agency of O’Neall, is, properly, to be confined to the inquiry—whether he was, in fact, the agent of Singleton to ship the cotton. Singleton attended in person, and apparently shipped his own cotton,—requiring it to go by the steamer in preference to pole boats; not a word or act of his, of O’Neall being his agent, appears from the testimony. O’Neall equally denies any agency, and is corroborated by Mr. Adger, the factor and consignee of Singleton.

It is true, that O’Neall’s letter to Adger, and his directing Anderson how the freight bill should be made out, might, very possible, implicate him in the charge, if made, that he assumed to be Singleton’s agent in shipping this parcel of cotton. But, without the concurrence, express, or plainly implied, by the words or conduct of Singleton—he cannot be bound by O’Neall’s apparent assumption of such agency: (State Bank v. Johnson, 1 M’C., 404.) And he is assured! v as little bound, by the mistaken conclusion drawn by Hilliard & Brooks, of O’Neall’s agency. Such a conclusion must have been drawn from O’Neall’s seeming interference in the shipment; by directing the manner of the freight bill, and his advice to Adger, and not from Singleton’s conduct in a single fact proved. Agency, or the liability of one man for the acts of another, must be plainly proved, according to the nature of the case and the subject; see Story’s Agency, p.; Bacon Prin. and Ag’t. But if any doubt existed as to O’Neall’s agency, it has been settled in the negative by the verdict for the plaintiff. Having disposed of the supposed usage, as entirely too recent and uncertain to limit the carriers liability, and of the supposed notice to Singleton, by reason of the imputed agency of O’Neall, who had himself received the notice, we come lastly to the supposed legal errors of our late brother Butler, the presiding Judge. First then: Ought he to have ordered a non-suit? It is too plain for argument, that the plaintiff had a prima facie case, that must pass to the jury, and not be turned out of Court by a non-suit. 2d. Was the Judge mistaken in charging, that the owners might avail themselves of the supposed usage, by showing that the cotton had not been burnt by their negligence. But it is plain, that in this the Judge might have well charged, in the much stronger language of the Court, in Swindler’s case, to wit: “I would hold him” (the carrier) “to strict proof of diligence and care in avoiding any loss to the owner, by so dangerous an element as fire,” &c. It must be in the words of that decision, “such fire as care and diligence could not avoid,” &c.; 2 R., 305. And the good policy and necesssity of requiring at least, so much of the carrier, is obvious; and in the proper spirit of the strict law of common carriers. The two other points of objection to the Judge’s charge, relate, the one to the application of the supposed usage, if any such existed, to the shipment of the cotton, and the other to the supposed agency of O’Neall; both of these, as facts, have been well decided for the plaintiff. But this Court perceives no error in the Judge’s instructions, on either of those points under any view of the evidence of the usage, or of the agency of O’Neall; he left both the usage and the agency without the restriction supposed in the grounds of appeal. The Judge charged that, “before the plaintiff could be subjected to all the liabilities of a contract entered into by Sondley and O’Neall, the jury should be satisfied that O’Neall was the legal agent, or authorized representative of plaintiff.” Doubtless it would have been sufficient to have inferred such agency from the conduct of Singleton and O’Neall, though not from the conduct of O’Neall alone. Such was the very question. But the Judge puts no restriction upon it as supposed in 1st ground of the appeal. In this decision upon the appeal, I have not considered it necessary to rely upon the fact, that on the day before the cotton was shipped, the Rail-Road had reduced their freights to 75 cents per bale; which would seem to imply, from the principle laid down by the owners, according to Sondley’s evidence, that 75 cents covered the insurance, as well as the carriage oi the cotton. Nor have I urged the very different understanding of Villipegue and Sondley, of what was the true meaning of Hilliard’s instructions to those two agents. Villipegue’s advertisement on the subject was as follows:

“Steam-boat notice.—The proprietors of the Steam-boat line plying from Camden and Columbia to Charleston, have made arrangements with the Augusta Insurance and Banking Company, to insure all cotton shipped by their boats from the above places, inform their friends and the public generally, that bills of lading for cotton will be given by the agents at Camden and Columbia, free of all risks, both from fire and the navigation, without additional charge.”'—D. F. Villipegue. Agent.

From this advertisement in the Camden paper, I cannot conceive that any one could understand that the shipper had to pay 12⅜ cents on each bale, in order to render the owners of the steam-boats liable for losses by fire, as Mr. Sondley would appear to have understood from the same instructions.

But still another fact appears worthy of notice: Mr. Anderson, another agent at Columbia, knew nothing of Mr. Villi-pegue’s advertisement in the public papers—shall we then readily assume that shippers had more knowledge of it? and does not all this uncertainty show the necessity not only that customs and usages should be plain and distinct, ancient and certain, before men shall be required to know them as constituting the law of their contracts. But, also, that he who would, by virtue of a special contract, derogate from his legal liability, is bound to give explicit information, in the language of Hilliard’s letter to Sondley, to all of the precise limitation intended. Such facts are auxiliary proofs of the general argument to support the verdict.

To conclude then—strip the plaintiff’s case of the imagined usage, and of the imputed agency of O’Neall, and it is stript of both by the verdict. And what is the case, but that of a man shipping his cotton on a steam boat, paying customary freight, which cotton has been destroyed in the boat by fire, and the owner of course liable. Therefore the motion is dismissed.

O’Neall J., Evaxs J., Frost J., and Withers J., concurred.  