
    Charles Stoddard and Joseph S. Lovering v. The Long Island Rail Road Co.
    Commercial law is not local or sectional, but national in its character, and it is desirable that its uniformity, as such, should be preserved.
    Hence, upon questions of this nature, a paramount authority ought to be attributed to the deoisions of the highest national tribunal.
    The owners of goods, delivered for transportation to the proprietors of an express and forwarding line, are bound by.any contract between such forwarders, and the common carriers, or other subordinate agents, whom they employ.
    Hence, such owners can only maintain an action against such carriers, or other agents, in those cases in which the action could have been maintained by the forwarders.
    A special agreement restricting the liability of common carriers is valid in law.
    Such an agreement, however, although general in its terms, is not to be interpreted, as exempting the carriers from losses, resulting from fraud or negligence.
    It has been an invariable rule in this court not to grant a new trial upon an objection which is raised for the first time, upon the argument of the motion.
    An error of law, in the charge of a judge, is to be disregarded as immaterial, when it appears that the question of fact, upon which alone the cause depended, was properly submitted by him to the jury.
    Hence, the verdict of the jury upon the question submitted in this, as in other eases, is not to be set aside unless plainly contrary to the evidence. '
    Motion, on behalf of the plaintiffs for new-trial denied with costs,
    (Before Dber and ^ami-bell, J.J.)
    (June 10, 28, 1851.)
    This was a motion on the part of the plaintiffs for a new trial upon a case settled, with liberty to either party to turn the same into a special verdict or bill of exceptions.
    The action, which was commenced before the code, was trespass upon the case against the defendants, as owners of the steamboat New Haven, to recover damages for the loss of four cases of silk goods, belonging to the plaintiffs; which in the month of January, 1846, were delivered on board the New Haven to be transported to Allyn’s Point, Norwich, and thence by railroad to Boston. It was tried before Mr. Justice Sand-ford and a jury, on the 15th April, 1849.
    The following are the material facts proved upon the trial.
    The plaintiffs are merchants, importers of French goods, residing in Boston, trading under the firm of Stoddard & Love-ring ; and on the 25th January, 1846, the goods in question, consisting of four cases of valuable silks, were delivered, as their property, at the office of Adams & Co., in New York, for the purpose of being transported by the latter to Boston and there delivered to the plaintiffs. Adams & Co., are common carriers, very extensively engaged in the express and forwarding business. They receive goods for transportation from and to the principal cities of the Union, and have an office in each of them for that purpose. Their contract is with the shippers or consignees of the goods for the whole route of transportation, and it is to them that the shippers or consignees pay the entire freight. On this occasion the goods in question were taken from the office of Adams & Co., in one of their own wagons, and placed on board the New Haven, for the purpose of being transported thence to Norwich, and thence by the Norwich and Worcester rail road to Boston. They were not, however, delivered to the captain or any other officer of the boat, but to a special agent or messenger of Adams & Co., whose duty it was to accompany and take charge of the goods, which they undertook to convey, and to pack them in crates provided for such conveyances. The four cases of silks were accordingly packed by him in such a crate, and this crate, after the arrival of the boat at Allyn’s point, by the gross negligence of the hands of the boat, who attempted to land it, fell overboard. It. was, however, got out from the water and transported to Boston ; but when the cases were opened, the silks were found to be wet and greatly damaged. They were, therefore, sold as damaged, on account of whom it might concern, at public auction. The sum for which they were sold, deducting charges and commissions, was $1257.20 less than their market value, if sound, and it was this sum, with interest, that the plaintiffs claimed to recover.
    On the part of the defendants, it was admitted that they were the owners of the New Haven, which was one of a line of boats belonging to them, employed in the transportation of freight and passengers, from New York and Norwich; and it was proved that they had purchased this, and the other boats of the line, from the original owner, Cornelius Vanderbilt—that between Vanderbilt and Adams & Co., there was a special agreement, in writing, relating to the transportation of the goods which Adams & Co. might undertake to convey ; that when the defendants became the owners of the line, the agreement with Vanderbilt was, by mutual consent, renewed and adopted throughout, as binding upon themselves and Adams & Co., and that it was under this agreement, that the goods in question, were received on board the New Haven, and transported.
    The agreement with Vanderbilt, which was read, in evidence, upon the trial, was in these words :—
    “ Memorandum of an agreement entered into this — day of February, 1844, by and between Cornelius Vanderbilt, proprietor of the Norwich Line of Steamboats, and Adams & Co., proprietors of a Package Express between New York and Boston.
    “ For, and in consideration of the sum of four thousand three hundred dollars, to be paid by the said Adams & Co. monthly, the said C. Vanderbilt agrees to transport, in his said steamers, on each and every passage between New York and Norwich, or such point in its vicinity at which said steamers may land, to the extent of one conductor or messenger, (without extra charge for berths or meals while on the passage,) and two merchandise crates measuring, together, one hundred and eighty-four cubic feet, or their equivalent.
    “ It is understood and. agreed, that the business of the said Adams & Co. on this route shall be confined exclusively to the transportation of merchandise and express matter from Boston through to New York, and from New York through to Boston; and that they, the said Adams & Co. and,their agents, will not in any way interfere with its local business ; said Adams & Co. further agree not to transport nor assist in transporting U. S; mails on this route.
    “ During the continuance of this agreement, it is understood and agreed that the said Adams & Co. shall possess the exclusive privilege, so far as it is in the power of said C. Vanderbilt, to grant such rights, of prosecuting the business,of a package express between New York and Boston, over his, said C. Vanderbilt’s, steamboats, via Norwich; and further, said C. Vanderbilt agrees to render all reasonable and proper facilities in the transportation of said express, as aforesaid; hut such exclusive privilege shall not be construed so as to preclude the proprietors of the line from transporting freight over this route in any way they may see fit.
    
      “ The said Adams & Co. agree to be alone responsible for any and all losses or damage to goods, wares, merchandise, or other property transported for them by the said C. Vanderbilt under this agreement; and they, the said Adams & Co., will advertise and give proper notice accordingly.
    
      “ This agreement to take effect from 1st ultimo, and continue one year therefrom, to wit—to the 1st January, A. D. 1845, unless sooner terminated, at the election of said C. Vanderbilt, in case said Adams & Co. should fail to comply with either of the provisions of this agreement; or in case he, said Vanderbilt, should withdraw his steamers from the route ; and in case said C. Vanderbilt should fail to perform either of thé requirements herein stipulated to be performed by him ; then, and in that event, said Adams <fc Co. shall have the power to annul the contract immediately.”
    The principal question of fact upon the trial, was, whether the hands of the boat, by whose negligence the loss was occasioned, were acting of their own accord, or under the direction of an officer of the boat, or at the request, and under the direction of Gould, the messenger of Adams & Co., in opposition to the wishes, and even orders, of the captain. Upon this question there was a direct conflict of testimony, Gould swearing positively to one state of facts, and a mate, and others of the hands, as positively, to another, and directly opposite.
    
      Upon the whole case, the judge charged the jury, as follows:—
    If the defendants were common carriers of the goods in question, they are liable for the loss sustained, although it happened on an extra trip; and this depends upon the question, whether the goods were in their care or keeping, at the time of the loss. If the plaintiffs contracted with Adams & Co. as the agents of, or acting for the defendants, the jury will be warranted in finding that the goods were in the defendants’ care, or keeping, and that they were liable as common carriers.
    It is proved that Adams & Co. were not, in fact, the defendants’ agents; but the defendants’ liability is the same as if they were agents, provided the defendants so acted towards the public with Adams & Co., and their express establishment, as to warrant persons delivering goods to Adams & Co., in believing that the latter were the defendants’ agents, or were acting in the defendants’ behalf, in carrying on their express.
    The jury will decide this point on the testimony before them, relative to the plaintiffs’ course of dealing with Adams & Co., and relative to the nature and character of their express business. There has been no satisfactory evidence given to show that the plaintiffs had any knowledge of the use by Adams & Co., of the forms of bill-heads and receipts which have been produced on the trial, and the jury will lay those forms entirely out of view. And as to the advertisement read in evidence, the testimony is very slight to connect the plaintiffs with any knowledge or notice of the same; and the jury will regard it accordingly.
    If the plaintiffs contracted with Adams & Co., as the agents of the defendants, or under circumstances which warranted them in believing that Adams & Co. were such agents, the defendants are liable, as common carriers, for the injury to the plaintiffs’ goods.
    On the other hand, if the plaintiffs contracted with Adams & Co., as principals, the defendants are not liable as common carriers. In that aspect of the case, Adams & Co. were the common carriers in respect of the plaintiffs, and were liable as such for the loss.
    Independent of the liability as carriers, there is another ground upon which it is claimed the defendants are responsible.
    
      The cause of the injury is obvious, and it clearly exhibits a want of care so great as to constitute a wrong, and to render liable those who were guilty of the neglect; and if this negligence was that of the defendants, or of those acting in their employment, they are liable for the injury.
    To determine this, the jury will inquire, were the hands of the boat, in attempting to get the crate ashore, acting under the orders and directions of Gould, the messenger of Adams & Co.; or were they acting of their own accord, or in supposed accordance with their ordinary duty, to run the crates ashore, on the boat being made fast to the wharf?
    If the steamboat hands were acting by the direction of Gould, or in aid of his expressed wish to get out the crate, after he was notified by the captain’s orders to the contrary, the defendants are not liable on this ground of negligence. If Gould assume 1 to direct in the matter, and the proper officer of the boat was not acting in it, Gould is responsible for all the defects in the placing of the planlts, and the want of care which resulted in the loss.
    If, on the other hand, the crew of the steamboat were acting of their own accord, without reference to Gould’s wishes, or were acting in the supposed discharge of their duty to get out the crates on the arrival of the boat, the defendants are liable for the injury which occurred. In this view of the case, the orders of the captain and first mate, not to take out the crate, do not relieve the defendants from liability.
    If the jury find the defendants liable, either as common carriers, or on the ground of negligence, they will give their verdict for the amount of the damages as proved, with interest from the date of the loss.
    The plaintiffs excepted to all that part of the charge, which, in any aspect of the case, exonerated the defendants from liability as common carriers.
    The jury found a verdict for the defendants.
    
      F. B. Cutting, for the plaintiffs, relied upon the following points and authorities, which he argued in extenso.
    
    I. The defendants were common carriers of the goods in question, and, as such, were responsible to the plaintiffs for the damage sustained by them in this case. (Merchants’ Bank v. The N. J. Transportation Co., 6 Howard’s U. S. S. C. Rep. 344; Roberts v. Turner, 12 J. R. 232.)
    II. The fact that Adams & Oo. by their contract with defendants agreed to assume all the liability for losses or damage to goods transported under their contract, does not by the settled law of this state alter the liability of the defendants as common carriers. (Goold v. Hill, 2 Hill 623.)
    III. The fact that Mr. Gould, the messenger or agent of the parties, was present to look after the property, does not alter the defendants’ liability. (Hollister v. Nowlan, 19 Wend. 234.)
    IV. That part of the judge's charge, in which he instructed the jury, that, “ If the plaintiffs contracted for the transportation of the goods with Adams & Oo. as the agents of, or acting for the defendants, the jury will be warranted in finding that the goods were in the defendants’ care and keeping, and that they were thus liable as common carriers”—is erroneous, and was calculated to mislead the jury, because that question has never arisen in the case, nor has either party ever contended or suggested, nor was any evidence offered that Adams & Co. were the agents of the defendants.
    V. The whole tenor of the charge, as to who was liable as common carriers, was erroneous, and calculated to mislead the jury as to the principles of law applicable to the case. Instead of charging that the liability of the defendants, as common carriers, depended upon the facts as to whether Adams & Oo. were the defendants’ agents, or whether defendants had so acted as to induce other people to believe so, the judge should have charged, as matter of law, from the facts proven, that Adams & Co. were the plaintiffs’ agents in employing defendants to transport the goods in question ; and that the defendants were liable as common carriers to the plaintiffs in the same manner, and to the same extent, as if the plaintiffs had made the contract with the defendants in person. (Merchants’ Bank v. The N. J. Transportation Co., 6 Howard’s Sup. Court Rep. 344.)
    YI. That part of the charge is erroneous, in which the judge instructed the jury that—
    “If the steamboat hands were acting by the direction of Gould, or in aid of his expressed wish, to get out the crate after he was notified of the captain’s orders to the contrary, the defendants are not liable, on this ground, of negligence.” (1.) If the officers and men who were in charge of the boat at the time of the accident, and who were the agents or servants of the defendants, instead of obeying the orders of the captain, as they should have done, violated such orders, and endeavored to put the crate ashore at the request or by direction of Mr. Gould, a stranger, that, of itself, was a gross neglect of duty, and sufficient to make the defendants liable for all the consequences. (2.) If Mr. Gould did direct or request that the crate should be put ashore, and the mate and hands of- the boat, contrary to the orders of their captain, consented to put it ashore, it was then their duty to put down the proper planks, and to úse all proper care in getting it ashore; and the loss having happened by the want of such care, the defendants are liable.
    
      H. F. Clark, for defendants, insisted that,
    I. The defendants were not the common carriers of the goods in question, and never had them in their custody or control. The plaintiffs contracted with Adams & Co., as principals, and not with the defendants. The action cannot therefore be maintained against the defendants. "The remedy of the plaintiffs is against Adams & Co., who were the carriers of these goods for the plaintiffs.
    II. The defendants had the power to contract for exemption from liability in respect of merchandise transported by Adams & Co. and are by such contract exonerated.
    III. The damage to the goods in question having been occasioned by the act of Gould, to whose custody they were intrusted by Adams & Co., and not by any negligence of the defendants, the defendants are not liable for such damage.
    IV. There is no error in the charge of the judge, and the motion for a new trial should be denied with costs.
   By the Court.

Duer, J.

All the questions of law that properly arise in this case, were involved in that of the Merchants’ Bank of Boston v. The New Jersey Steam Navigation Company, (6 Howard, 344,) and were then determined by the supreme court of the United States. This determination, including the reasons by which it is sustained, commands our entire assent, and had it been otherwise, we should still have yielded to its authority. The decisions of our highest national tribunal, upon questions of general commercial law, we cannot but think, ought to be regarded throughout the Union, as authoritative and controlling. Commercial law is not local or sectional, but national in its character, and its uniformity therefore a national concern, and it is only by attributing a paramount authority to the decisions of the highest court of national jurisdiction, that this desirable uniformity can be attained or preserved.

The contract in this case, between Adams & Co. and the defendants, is substantially the same, and must receive the same interpretation, as that between Harnden and the New Jersey Steam Navigation Company, in the case, by which we are governed, and conforming our decision to that of the supreme ■court of the United States, we must therefore hold: 1st. That the liability of the defendants, as common carriers, was restricted by the terms of the special agreement between them and Adams & Co., and that this restriction was valid in law.

2d. That by the just interpretation of this agreement, the defendants were not to be exonerated from all losses, but remained liable for such as might result from the wrongful acts, or the want of due care and diligence of themselves, or their agents and servants ; and, lastly,

That the plain tiffs, not having delivered their goods immediately to the defendants, but claiming through Adams & Co., are bound by the special agreement, and consequently, are not entitled to recover, unless this action could have been maintained by Adams & Co., in their own names.

These points being decided, it is obvious that the only question which remains in the case, is the question of fact, namely, whether the negligence, by which, it is admitted, that the loss was occasioned, can be justly imputed to the defendants, and if this question was properly submitted to the jury, and the verdict rendered, is sustained by the evidence, the motion for a new trial, must of necessity be denied.

It is therefore needless to consider, n hether all the positions of law, that were laid down by the judge upon the trial, and to which, exceptions were taken, were strictly correct, since, if in the result, the proper question was submitted to the jury, no previous mistake of the judge, could by possibility, have had any influence upon their verdict. If he arrived at the true conclusion, that the plaintiffs were entitled to recover, if the loss was occasioned by the negligence of the defendants, and so instructed the jury ; no error in the process of reasoning, by which he reached that conclusion, can be material. And if the jury have acquitted the defendants of the negligence imputed to them, and upon the existence of which, their liability solely depended, the verdict, if not against evidence,, must be conclusive. We are not to be understood as intimating, that there was in truth any error in the charge of the learned judge, but, as there was certainly none that could have misled the jury upon the single question which it was important for them to consider, we decline to enter upon a useless discussion. It is evident that upon the trial, the counsel of neither party had just views of the law, as settled by the decision of the supreme court, in the Merchants’ Bank v. The New Jersey Steam, Navigation Company, and hence the attention of the judge was directed to questions, in relation to which, no expression of his opinion was necessary to be made, or ought to have been required ; and it is equally clear, that neither party could have been prejudiced by the opinion which he did express. The plaintiffs excepted to all that part of the judge’s charge, “ which in any aspect of the case, exonerated the defendants from liability, as common carriers,” but, if the defendants, although common carriers, were exonerated from the loss, that was sought to be recovered by force of the special agreement between- them and Adams & Co.; the error of the judge, if such he committed, in holding them not to be liable as common carriers at all, was purely verbal, and wholly unimportant, since it is not pretended that he exonerated them from any loss, for which, under the agreement, they were meant to be responsible. On the contrary, he distinctly told the jury, that, if the defendants had been guilty of the negligence which occasioned the loss, (and, which alone under the agreement, could render them liable,) the plaintiffs were entitled to recover. The exception to the charge is therefore overruled, as irrelevant.

The judge told the jury, in substance, that if the hands of the boat, to whose neglect, the injury to the goods was plainly owing, were acting under the orders and direction of Gould, the messenger and agent of Adams & Co., the defendants were not responsible for the loss ; but, that they were responsible, if the hands were acting of their own accord, without reference to the wishes of Gould, and in the supposed discharge of their own duty. To this mode of stating and submitting the question of negligence, no exceptions were taken upon the trial, and it is, therefore, evident that the acts of Gould, the agent, were then considered by the plaintiffs’ counsel, as well as by the court, as those of his principals, Adams & Co. Upon the question thus submitted, it is impossible to say, that the verdict of the jury was against the evidence. There was a direct conflict between the testimony of Gould, the agent, and that of the hands of the boat, and looking merely to the number of witnesses, the weight of evidence was clearly in favor of the defendants. We have no right to say, that the witnesses for the defendants were unworthy of belief. Of their credibility, the jury were the proper and sole judges, and a verdict, which it is not denied, expressed their deliberate judgment, cannot be disturbed. To set aside a verdict, when the testimony was conflicting, and the question doubtful, would be, not an exercise of discretion, but an usurpation of power.' It has, however, been insisted, that the question of negligence was not submitted to the jury in the proper form, and that for this reason, the verdict may be justly disregarded. The judge, it is said, should have instructed the jury that, it was immaterial, whether the boatmen were acting under the direction of Gould, or in the supposed discharge of their own duty, since, upon either supposition, if the loss was occasioned by their carelessness, the' defendants were responsible for its satisfaction. The defendants were bound, it was argued, by the contract, with Adams & Co., not merely to transport the goods, but to deliver them at the place of destination. The landing of the goods, with due care, was therefore an essential part of the contract, from the obligation of which, Gould had no power to discharge them. As the agent of Adams & Co., he was to receive the goods upon their delivery, at Norwich, but during the passage, he was a stranger, having no right to interfere, and consequently, the servants of the defendants, in following his directions, were guilty of a breach of duty, for the consequences of which the defendants must be liable.

It is not to be denied, that this reasoning is specious, but it is a conclusive reply, that the question which it raises, was not raised upon the trial, nor the alleged error in the charge of the judge, then made a ground of exception. In this court, it has been an invariable rule never to grant a new trial upon an exception which is taken for the first time upon the argument of the motion. (Cook v. Hill, 3 Sand. Sup. C. R., p. 351.)

We are aware that there are cases, in which the supreme court has granted a new trial, upon the sole ground, that the decision involved an error of law, which had been wholly overlooked upon the trial, and we are not prepared to say, .that cases may not arise, in which we shall deem it expedient to follow a similar course ; but we shall certainly not depart from the rule that we have hitherto followed, in any case, in which the objection that is relied upon, had it been raised on the trial, might, perhaps, have been removed by additional proof, which the party against whom the objection is urged, may have been prevented from offering by the silence of his adversary. Here, had the question been raised on the trial, it might have appeared, upon the further examination of Gould himself, that he was clothed with all the authority of his principals, and had the same control over the goods that Adams & Co., if present, would have possessed ; and it cannot be pretended, that if Adams & Co. had personally directed the landing of the goods, the defendants would have been bound to make good any portion of the loss that followed.

As the case stands, we think, we are bound to say, that the silence of the plaintiffs, upon the trial, was equivalent to an admission, that Gould possessed, in its fullest extent, the authority which is now denied to him, and that the admission thus made, cannot now be withdrawn.

Our decision, that the plaintiffs are concluded by the verdict, must not be understood as implying that they are without remedy as against Adams & Co., or have lost their remedy by electing to sue the defendants. These are questions, upon which, it would be improper for us, now, to express, or intimate an opinion.

The motion for a new trial, is denied, with costs.  