
    Dominick Joyce against Joseph Sims, surviving partner.
    S. C. 2 Dall. 223.
    Action will not lie by a shipper of goods, to be transported beyond_ sea, against the consignee of a vessel, on a disappointment of the voyage, if he knew that the vessel belonged to a foreign house; aliter against the owner or captain.
    Consequential damages not recoverable against a consignee or factor, unless he has been grossly in fault.
    Assumpsit for the non-transportation of a quantity of flour to the island of Madeira.
    The case was this. The defendants under the firm oí Woodrop and Joseph Sims, advertised in the public newspaper, the sailing of the brig Molly, Thomas Willes, master, to Madeira, and that persons desiring to freight, should apply to them. They subjoined hereto an advertisement of goods for sale, as wine, porter, &c.
    The plaintiff applied to them, and shipped 70 barrels of flour on board the Molly, consigned to the widow Foster and sons, in Madeira, and captain Willes signed the bill of lading on the 29th August 1793. Freight 7s. 6d. sterling per barrel, payable in Madeira. The vessel was the property of a foreign house, John Marsden Pintard, and it was admitted in the course of the trial, that the plaintiff knew this fact. When she fell down the river Delaware, she was levied on under a foreign attachment, at the suit of George Meade, in Delaware county, returnable to October term 1793, and after-wards sold under a rule of the Court of Common Pleas there. The flour was relanded at Marcus Hook, and afterwards sold at public auction at a loss of 61I. 5s. 6d., exclusive of the charges of' transporting the flour from thence to Philadelphia. No special undertaking on the part of Woodrop and Joseph Sims was pretended. Woodrop Sims was since dead, and the defendant survived him.
    The plaintiff contended, that he was entitled to recover all consequential damages arising from the non-delivery of the flour in Madeira. It was said, this only could indemnify him.
    
      Sed per cur. The general rule as to damages, was settled in the case of Robert Lewis and Sous v. Thomas Carradan in April term 1786, and was recognized in John Marshall v. James Campbell and Richard Fullerton, in July term 1791. In the * present case, no consequential damages are re- ¡-*410 coverable unless the defendants were grossly in fault. L It is otherwise with the captain, who is personally responsible from having signed the bill of lading.
    - The plaintiff then urged, that he was clearly entitled to recover his prime loss, and cited 1 Bmerigon on Insur. 137, 138, whoever contracts in the name of another, is liable by the custom of merchants, though the general law is otherwise; one contracting for freight, though he declares his principal, is held liable by the customs of France.
    For the defendant it was argued, that this was a matter of great public commercial consequence, and must be determined on general legal principles. No merchant would be safe, if when he received the consignment of a vessel, he was to be responsible for the laches or default of his principal. The general rule is, that a broker or factor acting for his principal with authority, is not answerable, unless there is a special undertaking. 3 Wins. 379. The observations from Emerigon shew the law to be otherwise than is urged for the plaintiff, and in the instance there put, of the party contracting for freight, and declaring his principal, his responsibility der pended on his particular personal engagement.
   Per Cur.

The general rule is clearly as the defendant’s counsel have laid it down. If the plaintiff, when he shipped the flour, knew that the vessel belonged to Pintard, it is equivalent to the defendant’s declaring his principal at the time of shipment, and no action in such a case would lie against the factor. [Vid. 3 Vez. 33.]

If the plaintiff did not place his reliance on the owner or captain of the vessel, he should have required a personal engagement from the consignees; but not having done so, his remedy is against the two former, and not against the latter, whom he only knew in the capacity of factors. The conjoining the sale of the’defendant’s goods in the same advertisement with the freight of the Molly, proves nothing; since we all know that such things are customary in trade, to save ex-pence. We therefore think the present suit not sustainable.

Cited in 65 Pa., 259, in support of the decision that in an action of tort, the defendants may defend as being agents of a corporation and doing nothing outside of the duties of their employment.

Mr. Heatly^ra quer.

Messrs. Wilcocks and Rawle pro def.

The jury gave a verdict for the defendant without leaving the bar.  