
    *Canal-boat Montgomery v. Marvin Kent et al.
    For the breach of an executory contract to carry goods upon a particular boat or vessel, between the owner of the goods and the owner of the boat or vessel, an action can not be sustained against said boat'or vessel by name under the water-craft law of February 26, 1840. 
    
    Error to the court of common pleas. Reserved in Cuyahoga county.
    On November B, a. d., 1846, by warrant of that date, the defendant in error commenced an action of assumpsit against the plaintiffs in error, in the court of common pleas of Cuyahoga county.
    
      The declaration in the case contains two counts. In the first, *it is stated, in substance, that on August 1, 1846, the then plaintiffs were millers, and manufacturing large quantities of flour, iu a flouring mill at Eranklin, in the county of Portage, intending the same, or the greater part thereof, to he transported to Cleveland, in Cuyahoga county, between the day aforesaid and the close of navigation ; that on that day they entered into a contract with one J. Z. Smith, captain and owner of the canal-boat Montgomery, by the terms of which contract the said Smith agreed, for the consideration of eighteen cents per barrel, to be by them to him paid to transport in said canal-boat, to Cleveland, all the flour which they should make and desire to have transported, between that date and the close of navigation for that season ; that, although the plaintiffs manufactured large quantities of flour, and desired to have the same transported to Cleveland, in pursuance of said contract, the said boat refused to receive the same on board, and transport the same, etc.
    *The second count is like the first, except that the contract is charged as having been made with the boat itself, instead of being made with the captain and owner.
    To this declaration a plea of the general issue was filed, and at the March term, 1850, the case was submitted to a jury. The jury, under the charge of the court, returned a verdict in favor of the defendants in error, plaintiffs below, in pursuance of which, judgment was rendered.
    The plaintiff in error excepted to certain rulings of the court in the progress of the trial, and in the charge to the jury, and tendered a bill of exceptions, which was allowed, signed, sealed, and made part of the record.
    The bill of exceptions shows that on the trial, the plaintiffs below “ proved their copartnership, and submitted evidence tending to prove the contract set out in the declaration; that it was made by Captain J. Z. Smith, then master of the canal-boat Montgomery, and also submitted evidence that said Smith was, at the date of the contract, owner of the boat, and that said contract was made for and on account of said boat, and that said contract was violated by him; that he did not run his boat to the plaintiffs after the 2d of October, and they were compelled to pay extra prices to the amount found by the jury over and above their contract price; that they paid no more than the ordinary and reasonable prices, and that freights could not be procured at less prices. The proof of the contract consisted entirely of the declaration of said J. Z. Smith, made while he was the acting master of said boat, and in possession of it, and while, as the testimony tended to show, he was owner of said boat.”
    Upon this state of facts, counsel for defendant below asked the court to charge the jury as stated in the opinion of the court hereafter, in this case, which charge was refused, and such refusal is assigned for error.
    To reverse the aforesaid judgment, this writ of error is presented, and the following errors are assigned:
    “ 1. That the contract to carry freight, set forth in the first *and second counts of the said declaration, are not contracts the breach of which subjects a boat to seizure, under the statute subjecting water-crafts to seizure for debts, and the court erred in not charging the jury as requested by defendant’s counsel.
    “2. The court erred in charging the jury that the declaration of the owner of the boat might be given in evidence to charge the boat without proving that the said owner was such at the time the suit commenced, or without proving that the title to the boat at the time the suit was brought was derived from such owner by private sale, and not by public sale, on judgment under the statute. “3. That the judgment should have been for the defendant.”
    "Wilson, Wade & Wade, for plaintiff:
    The statute under which this action has been commenced is remedial, and its provisions should be interpreted in reference to. defects and mischiefs of the law as it was.
    Now, the mischiefs of the old law were, that those who intrusted their persons or property on board of water-crafts, for conveyance, were liable to injury by the negligence or misconduct of those having charge and management of such crafts. Those persons were frequently irresponsible; the injury, also, might, and usually would, occur, at places distant from the residence of the owner of the water-crafts, or these might be irresponsible or unknown. Injuries from these causes were of frequent occurrence ; often of a serious character, and always annoying and highly vexatious to all, and especially to immigrants, strangers, and those least able, from, poverty or from that repugnance which strangers always more or less feel against attempting to vindicate their rights by law, under so many discouragements.
    To remedy these glaring defects in our laws—defects made every day more glaring and intolerable, from the unparalleled growth of our internal commerce and increase of travel—this law was enacted, by which the legislature have devised for those suffering from this class of injuries, a simple, speedy, and ^effectual remedy. Contracts of the class set forth in the declaration, though perhaps within the letter of the act, were not within the contemplation of the legislature, nor within the spirit of the remedy provided by the act.
    The master of a canal-boat, as such, has no authority to make such a contract as this to bind the owners of the boat. It is equivalent to the charter of the boat to the defendants in error for the season.
    The master of a boat may be removed, but if the master can make such a contract as this, ho may do so for the lifetime of the craft.
    It is said the master in this case was owner; but it does not follow that t.hc boat can be seized for a breach of the contract.
    Resides this, the court below erred in admitting evidence of the declarations of the master of the boat that he was owner, and as to the contract. Reed v. Dickey, 1 Watts, 152, 154; 2 Cow. & Hill’s Notes, 655, 661.
    His declarations of ownership were not made when the contract was made, nor when he stated the terms of the contract.
    Andrews, Foot & Hoyt, for defendant.
    Foot & Hoyt submitted an argument,
    and relied upon the act of February 26, 1840.
    
      
       LEGISLATION.
      I. The “ act providing for the collection of claims against steamboats and other water-crafts, and authorizing proceedings against the same by name,” was passed and took effect February 26, 1840. 38 Ohio 34; Swan’s Stat. 209.
      II. This act was amended by an act passed March 10,1843. 41 Ohio T. 51.
      III. An act explanatory of these acts was passed February 24, 1848. 48 Ohio L. 76.
      IV. The acts of February 26, 1840, and March 10, 1843, were amended by an act passed March 24, 1851. 49 Ohio L. 101.
      
        These are the only laws ever in force in Ohio upon this subject.
      DECISIONS.
      In the ease of Olenney v. The Steamer Globe, in the District Court of the United States for the Northern District of New York, Conkling, J., held “that a judgment in rem rendered in a court in the State of Ohio, in virtue of the act of the general assembly of that state, entitled 1 an act providing for the collection of claims against steamboats,’ etc., passed February 26, 1840, and the act explanatory thereof, passed February 24, 1848, is to be regarded as a nullity by judicial tribunals in other states, unless the owner of the vessel proceeded against appeared in the suit, and had an opportunity to make a defense.
      “ The title, if any, acquired by the purchaser at a sale of the vessel on execution, in virtue of sueh a judgment, is subordinate to the lien in favor of a material-man, conferred by the general maritime law of the United States, and by the act of Congress of February 26, 1845, chap. 20.
      “A judgment recovered in a proceeding under the statute of Ohio, in a court of that state for supplies, is not a bar to a subsequent suit in rem, in admiralty for the sdme supplies.”
      QraKY.—Whether the provisions of the statute of Ohio are not repugnant to the constitution and laws of the United States? 3 Western Law Journal, N. S. 41 (1851). See also, vol. 2 N. S. (1849-50) 530.
      Questions have been decided touching these laws in the following cases:
      Steamboat Monarch v. Finley, 10 Ohio, 384; Canal-boat Huron v. Simmons, 11 Ohio, 458; Bennett B. Lewis v.The Schooner Cleveland. 12 Ohio, 341; Jones & Watkins v. Steamboat Commerce, 14 Ohio, 408.
      
        [llow far tbis case is overruled, see Webster v. The Brig Andes, 18 Ohio, 187, Curwen’s Cases Overruled, 28.]
      Steamboat Wavorly v. Joseph Clements, 14 Ohio, 28; Kellogg, Kennell & Orano v. Brennan et al., 14 Ohio, 72 ; Canal-boat Etna v. Treat, 15 Ohio, 585; Treat v. Canal-boat Etna, 16 Ohio, 276, 421; Goodsill v. The St. Louis, 16 Ohio, 178; The Champion v. Jantzen, 16 Ohio, 91; Schooner Argyle v. Worthington, 17 Ohio, 460; Prevost v. Wilcox, 17 Ohio, 359; The Aurora Borealis v. Bobbie, 17 Ohio, 125 ; Julius B. Webster v. Brig Andes, 18 Ohio, 187; Steamboat Clipper v. Linus Logan, 18 Ohio, 375; 1 West. Law Journal, 394 ; 2 West Law Journal, 44; Boyce v. The Steamboat Empress, 3 W est. Law Journal 174; Berry v. Griffin, 3 West. Law Journal, 129; Goodsill v. The St. Louis, 4 West. Law Journal, 123 (and see 16 Ohio, 178); Steamboat Arkansas Mail v. Fox, 4 West Law. Journal, 527.
      [llow 'far an opinion intimated in this case is overruled, see McGuire v. The Kentucky, 6 West. Law Journal, 179; and the same case reported in this volume of reports.]
      The Jane Louisa v. Williams, 5 West. Law Journal, 8 ; S. P., 17 Ohio, 460 See 4 West. Law Journal, 528.
      The decision of Goodsill v. The St. Louis, 4 West. Law Journal, 123, and the same case in 16 Ohio, 178, and The Champion v. Jantzen, 16 Ohio, 91, led to the enactment of the explanatory act of Eebruary 24, 1848, which modifies the law as decided in those cases. Section 2 of that act has been declared unconstitutional. Aurora Borealis v. Dobbie, 17 Ohio, 125. See also 2 West. Law Journal, N. S. (1849-50), 143.
    
   Hitchcock, C. J.

By the bill of exceptions it appears that, on the trial of the case, the defendants in error introduced testimony tending to prove a contract with T. Z. Smith, while captain of the Montgomery, as stated in the declaration, and that this contract was on account of the boat, or for transportation in this particular boat; that the contract was violated by a refusal to transport flour, after October 2, 1846; that the defendants in error were under the necessity, after that time, of employing other boats to transport their flour, and compelled to pay a greater price for freight than under their contract with Smith they were bound to pay. Tho testimony offered to prove the contract consisted principally in the *proof of declarations made by Smith while he was captain of the boat. The price actually paid for freight was not above the ordinary rate for the season.

After the testimony was closed, counsel for plaintiff in error requested the court, among other things, to charge the jury:

“1. That no recovery can be had upon the first count in the 'declaration, because it makes no ease as against the defendant.
“ 2. That the second count does not set up a contract upon which the defendant is liable to seizure and suit under the statute.”

To this request the court responded as follows: “Upon the first and second points made in the request, a majority of the court are of opinion, and so charge, that the contract set forth in each of the counts in the declaration, are such contracts as Would hold the defendant; we, therefore, refuse to charge upon those points as requested by the defendant’s counsel.”

This is assigned as error, and presents this single question, whether an executory contract to carry freight upon a particular boat or vessel, attaches to said boat or vessel, and is within the statute of February 26, 1840, “providing for the collection of claims against steamboats and other water-crafts, and authorizing proceeding against the same by name.” This question might as well have been presented by demurrer, but it may be made as it now is, by calling upon the court for special instructions to the jury. This is a new question in this court, although it has heretofore been decided upon the circuit.

For tho non-performance of a contract like the one set forth in this declaration, the defaulting party would be liable to an action. But if he was ready and willing, and offered to transport the freight, I think he would not be liable in damages, for not offering to do it in the identical boat specified in the contract. The object of the freighter is to procure the transportation of his property, and it can not bo essential to him whether it be done in one boat or another.

A common carrier is' liable for all loss or damage to goods *which he undertakes to carry, unless the loss arises from inevitable accident, or from the public enemy. But this stringent rule can not be applied to him until tho goods are once in his possession. When so in his possession the law imposes this liability. But should a common carrier enter into a contract to carry goods hereafter, and should he refuse to comply with that contract, we suppose he will be liable to the same amount of damages, and no greater, than would any other individual under similar circumstances.

The first section of the act before referred to, provides, “that steamboats,” etc., “ shall be liable for debts contracted on account of the craft, by the master,” etc., “ for material, supplies, or labor, in building, repairing, furnishing, or equipping the same,” etc. A contract to furnish materials, labor, or supplies, is not within the statute. But in order that the right may exist, to sustain an action against the craft, by name, as provided in the second section, the “material, supplies, or labor,” must have been actually furnished.

The statute further provides, “that the craft shall be liable for damages arising out of any contract for the transportation of goods or persons, or for injury done to such person or property by said craft,” etc.

Now it is said by counsel for tho defendant, that here was a contract for the transportation of goods, and therefore it is within the letter of the statute. But the damages sustained do not, strictly speaking, arise out of this contract. They arise from the refusal of Smith, tho other contracting party, to comply with his contract, whereby the defendants were under the necessity to procure other persons than Smith to transport thoir flour, at a higher charge for freight. But the bill of exceptions shows that they paid no more than the ordinary rate for that season.

It seems to have been supposed that it was necessary that tho contract for the transportation of%oods, referred to in the statute, must be on account of the craft, and therefore efforts were made to prove that this contract was on such account. *But how .it can be said that a contract to carry on a particular boat, is a contract on account of, or upon the credit of that boat, I do not readily perceive. But the statute does not in fact prescribe that the “ contract for the transportation of goods ” shall be on account of, or upon the credit of the boat; that phraseology applies alono to “materials, supplies, and labor.”

It seems to tho court that an executory contract, like the one now before tho court, was not in the mind of the general assembly, in the enactment of this law, but that body had an entirely different contract, or class of contracts, in view. The owner of a steamboat, or other water-craft, employed in the transportation of goods, is a common carrier, and is hound safely to carry and deliver the goods, and nothing will exonerate him, unless prevented by inevitable accident, or the public enemy. There is an express or implied contract between him and the person for whom he carries, to this effect—express, if there is a bill of lading; implied, if he carries without any such bill.

If the goods are received on board the boat or vessel, this contract attaches, and if the goods are injured or lost, there is an injury or damage arising out, or in consequence of the contract, while the same is in the course of performance. The owner himself would be liable, and by the act of February 26,1840, an action to recover lor the loss might be sustained by the person injured against the craft by name. As the “ materials, labor and supplies” were'furnished to her, so the goods to bo carried were received on board, and there is the same reason for allowing the proceedings authorized in the statutes in the one case as the other. But there is no reason why a remedy should be given against the craft by name, merely because the owner has failed to comply with his executory contract to carry goods at some future period.

In the opinion of this court, the court of common pleas erred in refusing to charge as requested, in the two particulars named, and this renders it unnecessary to look any further into the case.

*The judgment is reversed, with costs, and the case remanded to the court of common pleas, to carry this judgment into execution.

Spaulding, J., did not sit in this case, having originally been of counsel.  