
    CHOTEAU & VALLE vs. STEAM BOAT ST. ANTHONY.
    Where there is any evidence tending to prove a fact in issue in a cause, it is the province of the jury to determine upon its sufficiency.
    ERROR FROM ST. LOUIS COURT OF COMMON PLEAS.
    STATEMENT of the case.
    This was an action brought against the defendant under the 4th subdivision of sec. 1 of the revised statutes concerning Boats and Vessels. By the complaint it is alleged in substance, that the plaintiffs contracted with the captain of the steam boat St. Anthony to transport the sum of five hundred andi seventy two dollars in bank notes to a point on the Ohio river, and delivered that sum enclosed in a letter to the clerk of the said boat, the letter being directed to William Pell, but that four hundred and twenty dollars of the money was never received. Plea. General issue.
    On the part of the plaintiff it was proved that the sum of five hundred and seventy-two dollars was enclosed by them in a letter directed to William Pell, at Pell’s landing, and put on board the steam boat St. Anthony, to b e transported to and left at Pell’s landing on the Ohio river ; that the same letter enclosing the money was delivered at Pell’s landing, hut that four hundred and twenty dollars of the amount had been abstracted from the letter before its delivery. It was aho proved that the letter bore the appearance of having been broken open and resealed again.
    On the part of the defendant it was proved that the letter was not delivered on her trip from St. Louis to Cincinnati, but was delivered on her return trip from Cincinnati to St. Louis,
    
      Darius Coder, a witness on the part of the defendant, anda hand on the boat, testified that Mr. Waugh, the clerk of the boat* told him when they arrived at Pell’s landing that there was a letter to be delivered there; handed the letter to witness, and told him to look at it, “if there should be any trouble about it, to look at it and see if it was sound, that it had money in it.” The witness said he looked at the sealing and saw that it was sound. The defendant also proved by the cleric of the boat, that the letter was put into the safe, and that no one had access to the safe but the captain of the boat and himself, and that the letter remained in the safe from the time the boat left St. Louis until ifs delivery at Pell’s landing. The defendant then introduced one steam boat captain and two witnesses who had been steam boat clerks, who testified that they did not consider boats liable for the safe transportation of money if it was sent in sealed letters: that boats were in the habit of taking, money free of cha:ge for their customers.
    The plaintiffs then proved by Capt. Price that he had lived id St. Lpuis twenty eight years, had been for a long period o i time a captain of a steam boat, was well acquainted with the custom of boats in regard to the transportation ofinoney; he had carried money frequently, and it was very, customary to carry it without charge, but he always considered the boat liable for whatever mopey was given her to carry. This was all the testimony.
    The cojirt then instructed the jury as follows; “Unless the jury find from the evidence that there was a contract with the clerk of the boat for the delivery of the money in question, by which the boat was to he paid for transporting it, they will find for the defendant. Such a contract may beexpressad or implied. There is no evidence in this case of any express, contract, arid if the jury find from the evidence that it is the usage of trade to give a receipt and charge proportionately to the amount of money committed to boats for transportation, and to notify the parties of the fact at the time of receiving the money, when it is intended to charge for it. And if the jury also find that in this oa.se no charge was actually made for payment of any sum as freight on the package in question, the jury would not he warranted in finding an implied contract in this caso.” The plaintiffs excepted to the giving of this instruction, and prayed the court to. give the following: “That if the jury believed from the evidence that the money in the letter referred to, charged to have been abstracted, was abstracted or purloined by the captain or clerk of the steam boat St. Anthony, they will find for the plaintiffs,” which the court refused to give. The jury having retired to-make up their verdict, and having been out some time, the court discharged them until 9 o’clock the next morning, and upon meeting them next morning, the court on its own motion, gave the following instruction : “There must have been a contract of affreightment to charge the boat in this case; it is,essential, to such contract that there should be an agreement to pay freight. In this case there is no evidence to prove such an agreementj„for though according to the custom of trade, such property as that in question, under certain circumstances, becomes freight, as where a receipt is given and a charge made proportional to the risk undertaken, in other words, where an express contract is made. Yet there are no-such circumstances in evidence in this case, au.d. therefore the jury are bound to find for the defendant,” To the giving of this instruction the plaintiffs excepted, and asked the court to instruct the jury as follows:-. “If the jury believed from the evidence a contract either expressed or implied was made by the plaintiffs with the steam boat St. Anthony, for the carrying the money mentioned in the complaint, and that such money was actually delivered to the offices of said boat to be so conveyed, and that the same was not delivered, they will find for such sum and- interest, as the boat failed to deliver,” which the court refused to give, and said he would give no further instructions to the jury. Afterwards, and while the counsel for the plaintiffs was out of the court room, one of the jurors come out of the jury room and went to the judge on the bench, who sent the following instruction by said juror to the jurors :
    “It is the duty of the court to declare the law to tile jury, and the jury to apply it to the evidence. It is within the power of the court to say to the jury, that there is no evidenoe when there is no evidence, or where there is no evidence of any legal effect in the case. In the case before the jury, the court having carefully thought over the case, has come to the conclusion that there is no evidence before the jury, the legal effect of which tends to piove acontract within the customs of trade for carrying money, and having so declared to the jury, it only remains for the jury to find a verdict in accordance with the directions of the court, they being relieved from the consideration of the evidence by the instructions.’"
    Upon these instructions tho jury found a verdict for the defendant. Tito plaintiffs moved for a now trial, which being overruled they appealed.
    Leslie & Lord, foi plaintiffs in errof.
    1st. The court erred in instructing the jury that unless they found there was a contract with the clerk of the boat, by which the boat was to be paid for transporting the money, to find fot tito defendant. This instruction was calculated to mislead the jury. Tho law as laid down by tho court is, that an agreement to pay freight is implied by tho delivery of the goods to the carrier, and the proof in this case is, that tho package in question was delivered to and accepted by the officers of tho boat. 11 Mo. Rop. 226.
    There needs no particular agreement for biro to render a common carrier liable, because where there is none, ire may have a quantum merecí t. 2 Wend. 327 ; 11 Mo. Rep. 226.
    2d. Under the evidence in this case, it was error to instruct tho jury; that if no charge Was actually made for payment of any sum as freight on tho package in question, they would not be warranted in finding an implied contract in this case.
    If this be the Jaw, that if no charge is actually made, the carrier is not liable, then no carrier could ever be made liable when goods are lost. Freight is not due till earned ; goods are shipped and lost, and the carrier makes no charge and is not responsible. This part of the instruction was likely, also,'to mislead the jufy.
    3d. The court erred in refusing to instruct the jury, that if the money in question was abstracted by the agent of the owner, who had it in charge, the boat was liable. 4 N. II. 304; 1st Dev. & Bat. 273; 6 Johnson 170; 1 Conn 487; 8 Sergt. & R. 533, applies to carriers by water as well as by land. 11 Pick. 41; 10 John 1; 5 Day 415; 2 Vermont 92.
    4th. Tho court erred in instructirg the jury that it was essential to a contract of affreightment that there should be an agreement to pay freight, and that bank notes could not become freight, unless a receipt was given and a charge made in proportion to the risk run.
    The delivery to the boat, and the acceptance of tho packet to carry, enabled the boat to charge and collect freight when tho package should be delivered. It was for the boat to show that she was not to earn freight, nor to be responsible for the sale carriage of the money enclosed. 11 Mo. Rep. 226. Bank notes become freight as soon as delivered to the carrier. Story on Bail’ts. See 495.
    5th. The 2d instruction asked for by the plaintiffs in this case, contained a true exposition of the law as applicable to tho facts as they appear in the bill of exceptions in this case. Tho proposition, as contained in that instruction, was as follows : if a controct'was made by the plaintiffs with the steam boat St. Anthony, either express or implied, for the carrying of the money, and the money was actually delivered to the officers of tho boat, and not by the boat delivered at its destination, the plaintiffs must recover. This instruction would seem to be fully born out by the case in 11 Mo. Rep., and fully sustained in 2nd Wendell 327.
    6th. The court erred in giving instructions to the jury after he had announced that he would give no more, and especially in giving the instruction to a single juror, and sending it into the jury room by him, and in the absence of counsel.
    7th. The court erred in instructing the jury that there was no evidence before the jury tending to prove a contract within the custom of tiade, for carrying money, and the court having so de'«larod, it only remained for tho jury to find a verdict in accordance with the directions of the n,ourl, they bein£ relieved from the consideration of the evidence by the instructions.
    There was evidence proving a contract to carry the money. Delivering to, and acceptance by, the boat completed the contract, ll Mo. Rep. ¿26; 2 Wend. 327.
    The court said there was no evidence within in the customs of trade, of a contract to carry ■money, thereby undertaking to decide what tho customs of trade were, as applicable to this case. Now, what the ctistoms of trade were, was a fact for the jury to find, and the court took it from the jury. 1 Mo. Rép. 618. It was error for the court to take the case from the jury. 5 Mo. Rep. Í10; 6 lb. 73; l6 Jb. 442.
    It was for tho defendant to shtfvv that there was any usage Of trade that relieved the beat from its responsibility, hi o such custom was shown.
    A custom to vary or control the legal rights of parties, must bti general, uniform, notorious, and reasonable. 1 J. Suer on Ins. 258; 5 (.-ranch 335; lMason 12¿; 12 Wheall '6 383; 1 Story 300; 8 Crunch ?_5; 2 Story 16.
    The case of feiishforth vs. Hadfield; 7 East. 225, was whore the defendants carrier claimed a Üenon the goods carried, not only for the price of carrying the particular goods, but for a general balance due to them for previous carriage, and undertook to show that custom, and a particular course of trade among a particular sort of carriers, had overcome the genera] law that carriers had no lien for general balances. In. this case the truc rule was laid down, that is, that tho Usage must be so general as to warrant a jury in presuming that the parties who delivered tho goods to he carried, knew of it, and understood that they wore contracting with reference to it. “All the judges agreed that a custom of this kind, which is quoad hoc, to superebde the general law of the land, should ¿ó clearly proved Cowen & Hills notes to Phillips part 21id p. 1413, 17 Wend. 305.
   Judge Birch

delivered the opinion of the court.

When this case was formerly before this court, 11 Mo. Rep. 226, the liability of a steám boat, as a common carrier, was somewhat elaborately discussed, and from the principles laid down in that decision, so far as they are involved in the questions here, we have perceived no reasons to depart. It will only be necessary, therefore so far to restate the case, as to render intelligible, in this connection, the difference of opinion between this court and the court below.

The plaintiffs brought this suit against the steam boat St. Anthony under the fourth subdivision of the first section Of the act concerning Boats and Vessels, alleging that they contracted with said boat to transport the sum of five hundred and seventy two dollars in bank notes to a point on the Ohio river, and delivered to the clerk of said boat a letter enclosing that sum, directed to Wm. Bell; four hundred and twenty dollars of which was never delivered. The parties having gone to trial upon the general issue, it was proven by the plaintiff that the letter enclosing the money, and directed as in the complaint alleged, was delivered to the clerk of the St. Anthony, on board, to be transported and left according to its direction ; that the letter was delivered, but that it contained but one hundred and fifty dollars, and bore appearances of having been broken open and resealed.

Various witnesses testified respecting the usages of the trade or the custom of boats in carrying such letters; and although their testimony may be regarded as inexplicit and unsatisfactory, even if taken in connection with the declaration of the clerk when on the voyage, that “they intended to have five dollars for bringing the package round,” we think the instructions of the court should have left it to the jury to decide, from the testimony before them, whether boats were or were not in the habit of carrying such packages as freight or for hire. If they were, the liability of the boat would be unquestionable. If they were not, the" case would be otherwise, except where, as held in the previous opinion in this case, no usage being shown, the agreement of the carrier might raise the presumption that such was his customary employment.

The contrary of these positions having been apparently assumed and acted upon by the court below, especially in the instructions which it delivered to the jury, whereby there was virtually withdrawn from the consideration the finding of the facts alluded to, its decision is, for that reason reversed, and the cause remanded for a new trial in conformity with this opinion.  