
    McGregor v. Johnson.
    Assumpsit on the following: “ Clinton, March 19,1847. We agree to pay Thomas Johnson 200 dollars on account- of freight to be taken from this place to New Orleans, by Samuel Case, in a flat-boat; to be paid after said freight is delivered at New Orleans, as per contract with said Case. By order from said Case. James Dudley and Co" Held, that Johnson could not recover unless Case had complied with his contract.
    ERROR to the Vigo Circuit Court.
    
      Thursday, May 30.
   Smith, J.

Assumpsit by the defendant in error against the plaintiff in error. The first count of the declaration alleges that an agreement was made in writing by James Dudley, Isaac Sanford, and McGregor, the defendant, as partners, under their firm name of “ James Dudley and Co.”, with the plaintiff, to pay the latter 200 dollars, on account of freight to be carried by one Case, on a flatboat, from the town of Clinton, in this state, to New Orleans; said sum to be paid after the delivery of the freight at New Orleans, as per contract with said Case. The plaintiff averred that said freight was delivered, according to the contract, by Case, and that the defendant had not paid, &c. ' The second count was for the value of a flat-boat sold and delivered; and the third count was for money had and received.

The case was tried upon the general issue, and the plaintiff recovered a judgment for 210 dollars.

The evidence to sustain the judgment was as follows: In January, 1847, Dudley and Co. made the following-contract with Case:

“ Terre Haute, January 26th, 1847.
“ Samuel S. Case agrees to freight one ñat-boat load of pork, lard, and bacon, to be loaded at Clinton, Indiana, on account of James Dudley and Co., at the following rates: For barreled pork, and lard, 62£ cents per barrel; keg-lard, 10 cents per keg; bacon, in casks, 27J cents per 100 lbs. nett; to be delivered in New Orleans to whomever James Dudley and Co. may consign. The boat is 100 feet long by 20 wide, to be built in a substantial- manner, and to be ready by the first rise of water in the spring. If any flour is shipped on this boat to be -. Mr. Case agrees to keep the boat hands three days after the boat gets in to New Orleans to unload, and the steersman, if he is needed longer than .three days, to be paid 1 dollar per day, after the three days. The above is a contract if Mr. Alexander McClure recommends Mr. Case as a good steersman, and the boat be a good one.
(Signed) Samuel S. Case.”

Case, who was introduced as a witness by the plaintiff, testified to the following facts:

Case had, early in the winter, contracted with Johnson, the plaintiff, for the purchase of the boat he intended to freight for Dudley and Co., at the price of 325 dollars. About the 8th of March, Sanford was at Clinton shipping the freight which Dudley and Co. had there for transportation, and he sent a letter to Case complaining of his delay and requiring him to bring the boat down. Case then went to Clinton and told Sanford that Johnson wished to get off from his contract, and would not let the boat go without the money or security; whereupon Sanford told Case to go back and tell Johnson to bring on the boat as soon as possible and he could have the money. About the 26th of March, Case, in company with Johnson, brought the boat to Clinton in an unfinished state. Sanford had then been gone several days with part of the freight defor New Orleans. Case then finished and loaded fooat^ and, on the 29th, he desired to start, but, under the advice of an experienced person that the river was too low, Dudley and Co. refused to permit him to do so. On the day last mentioned Case drew an order on Dudley and Co., in favor of Johnson, for about 269 dollars, having previously paid him the balance of the price of the boat. Johnson presented this order to Dudley and Co., who paid him 69 dollars, and gave him the obligation mentioned in the first count of the declaration, which was in the following words:

Clinton, March 29th, 1847.
“We agree to pay Thomas Johnson 200 dollars on account of freight to be taken from this place to New Orleans, by Samuel Case, on a flat-boat; to be paid after said freight is delivered at New Orleans, as per contract with said Case. By order from said Case.
James Dudley and Co.’\

Two or three days after these transactions Case finished loading the boat and started by the direction of Dudley. He proceeded safely until he reached a point near New Harmony, where the boat ran upon a sand-bar and was stranded. Pie had the freight (except a cask of hams, which, being injured by exposure, were put on shore and left,) taken out of the flat-boat and put upon a steam-boat, and having received for his charges, paid by the steamboat, a sum of money, which, with the 269 dollars above mentioned, amounted, to 760 dollars, he returned home. He did not pay the steam-boat freight.

Case further stated that he had afterwards heard a conversation, in which McGregor said, the freight arrived at New Orleans, except a, cask of hams andsome40 kegs of lard.

The defendant gave in evidence the bill of lading of the freight shipped on the flat-boat, by which it appeared that the amount Case would have been entitled to receive, if he had delivered the whole in New Orleans, according to his contract, was about 645 dollars.

There was upon the bill of lading a receipt signed by Case for 268 dollars and 73 cents on account of the freight, which was for the 200 dollars specified in the obligation given by Dudley and Co. to Johnson and the sum paid him in cash.

The plaintiff in error contends that he is only bound according to the tenor and effect of the obligation signed by Dudley and Co., on the 29th of March, 1847, and that the plaintiff below was not entitled to recover, because Case did not deliver the freight in New Orleans as he had contracted to do.

The defendant in error, on the other hand, insists that he was no party to the contract between Case and Dudley and Co., and that, upon a fair construction of the agreement made by Dudley and Co. with him, the delivery of the freight, by Case, in New Orleans, according to the contract between Case and Dudley and Co., was not a condition precedent to the right of the defendant in error to recover in this suit. He contends that when, upon his presentation of the order of Case, Dudley and Co. paid him a sum of money in cash, and gave him their promise in writing to pay him 200 dollars, those sums were to be regarded as a payment in advance to Case on account of the freight, the object being to enable Case to obtain the boat of the defendant in error.

The defendant in error might, no doubt, have insisted upon payment being made to him before the delivery of the boat, or he might have required a note from Dudley and Co. for its price or value, but, evidently, he did not do so. The agreement signed by them is for the payment to Johnson, by the order of Case, of 200 dollars, on account of freight to be delivered at New Orleans, when said freight shall have been delivered by said Case according to his contract. The parties were competent to make such an agreement if they thought proper to do so. There was nothing in the attendant circumstances inconsistent with such an agreement, and there is no ambiguity in the words used. The contract proved corresponds precisely with that described in the first count of the declaration, but the material averment made in that count, that Case delivered the freight according to his contract, was not proved. On the contrary, it clearly appears, that Case did not perform his contract, but, after carrying the freight some distance down the Wabash river, he placed it on a steam-boat, and, having procured from the steamboat a large sum of money for his charges, he abandoned it altogether, subjecting Dudley and Co., or the freight itself, to the payment of such expenses as might after-wards be charged by other carriers for conveying it to its place of destination.

W. D. Griswold and J. P. Usher, for the plaintiff.

J. A. Wright and E. W. McGaughey, for the defendant.

We think, therefore, that the evidence does not sustain the judgment, and that a new trial should have been granted.

Per Curiam.

The judgment is reversed with costs. Cause remanded for a new trial, &c.  