
    Darwin vs. Cox and M’Kinney.
    When a declaration alleges that two persons jointly contracted as carriers to carry and freight goods, &c. a recovery may be had against one of them only, by virtue of our act of 1820, ch. 25, sec. 2.
    This is an action upon the case, brought against the defendants as common carriers, for an injury done to some com by the sinking of a boat. The declaration alleges, that they jointly agreed and contracted, &c. Cox and M’Kinney owned a boat, and not having load sufficient for the boat, Cox contracted with Darwin, that he, Darwin, might carry his corn on their boat for twelve and a half cents per barrel, which was half the usual freight, and he, Darwin, was to accompany the boat, furnish a hand, and find liquor for others. He had the privilege of unloading his corn at any point above Nashville. The corn was kept separate, and when the boat sunk was thrown out by Darwin and his hands in separate pens, and was kept by Darwin.
    Elijah Shepherd proves, that he put corn on the boat as part of the load that M’Kinney was to furnish. He was to pay twenty five cents per barrel for freighting and selling; he dealt with M’Kinney alone, looked to, and received pay from him. Each party, Cox and M’Kinney, were to put in and furnish his half of the freight; and M’Kinney had furnished his half independent of the Darwin corn.
    Sampson Williams proves that he contracted with Cox and M’Kinney to freight for him one hundred barrels of corn, that is, M’Kinney was to freight twenty barrels and Cox eighty. M’Kinney said twenty barrels would complete his part of the load. Each of the defendants was to furnish equal parts of the freight. If his, Williams’, corn had been lost, he would have looked to each separately, and not to them jointly for pay. Williams bought Cox’s interest in the boat, after it had been sunk and raised. There was proof to show that Cox and M’Kinney were partners and had contracted jointly. The circuit court charged the jury, that if Cox and M’Kinney were not partners in the business, neither of them could be recovered against on this declaration. The jury returned a verdict for the defendants, the plaintiff moved for a new trial, and the same being overruled, he appealed in error to this court.
    
      Wm. A. Wade, for the defendants in'error.
    1. It is important to examine whether this falls within the general class of cases governing common carriers. If it falls within that class, the law is clearly settled by this court in the case of Craig vs. Childress, (Peck’s R. 370,) and Gordon and Walker vs. F. Porterfield,"Nash-ville, February Term, 1833. The first of these cases establishes the common law doctrine in this State, and declares the carrier liable in all cases except loss occasioned by the act of God or public enemies of the country. In the case decided at Nashville, the words “dangers of the river and unavoidable accidents only excepted,” were inserted in the bill of lading. The court determined that this exception softened down the rigor of the, law, and that the carriers Were not liable for accidents occasioned by hidden obstructions, or for any accidents that ordinary prudence could not have avoided. Ill this case last referred to, the court proceeded upon the ground that the parties had a right to make their own contracts, and that the rigor of the law gave way to the contracts of individuals. Where the parties make no special contract, the law has made one for them, by a settled and uniform course of decision; but where the parties have made a contract, the court will only enquire into its terms, and see that it is executed.- Jom onB. 10, 22, 89: 2 Com. on Gon. 330-Í.
    In the case referred to in Strange, the agent of the owner of the goods accompanied them and they were lost. The court decided that as an agent accompanied and had the care of the goods, it formed an exception .to the general law, and that the carrier in such case was not liable.
    In the case before the court,-every step that was taken was governed by a special contract, which took it out of the general rule. Cox and M’Kinney had not load enough for their boat, and therefore made the contract with Darwin that he might carry his corn on their boat for twelve and a half cents a barrel, half the usual freight, and he, Darwin, was to accompany the boat, furnish a hand and find liquor for others. He had the privilege of unloading his corn at any point above Nashville. The' com was kept separate, and when the boat sunk, wás thrown out by him and his hands in separate pens, and -was then in his possession. The parties proceeded upon a.special contract, and Darwin always accompanied and retained the possession and control of the corn.
   CatRon, Cb. J.,

delivered the opinion of the court.

Elijah Shepherd proves he put corn on the boat as part of the load that M’Kinney was to furnish. He was to pay twenty five cents per barrel for freighting an'd selling; dealt with M’Kinney alone, looked to, and received pay from him. Each party, Cox and M’Kinney, was to put-in and furnish his half of the freight, and M’Kinney had furnished his half independent of the Darwin corn.

Sampson Williams contracted with Cox and M’Kinney to freight for him one hundred barrels of corn; that is, M’Kinney twenty barrels 'and Cox eighty barrels. M’Kinney said twenty barrels would complete his part of the load. Each of the defendants was to furnish equal parts of the freight. If his (Williams’) part had been lost, he would have looked to each separately, and not to them jointly for pay. Witness bought Cox’s interest in the boat after it was raised.

There was proof also to show that Cox and M’Kinney were jointly liable: but that the truth of the mode of freighting is stated by Williams, hardly admits of a doubt; and that the jury believed Cox contracted ón his own account for Darwin’s freight, and was responsible to him. alone, is highly probable.

On this evidence the circuit court charged the jury-,, “If they (Cox and M’Kinney) were notpartners in the business, neither of them can be recovered against on this declaration.”

The other parts of the charge are correct, that if they jointly undertook, they are jointly liable as common carriers; unless it be true the plaintiff freighted at his-own risk, which depends on-the fact. Could, on the declaration, a verdict and judgment be rendered against Cox, and for the defendant, M’Kinney? At common law this could not be done; the allegation that the contract was joint, must have been supported by the proof. 1 Chitty’s Pl. 34, 75. But by the act of 1820, ch. 25, sec. 2, it is provided that in all joint actions founded upon contract, whether the action be debt or case, a verdict and judgment may be rendered against the defendant who is liable. The first section of the act declares all the parties to negotiable paper, maker and endorsers, may be jointly sued, a stronger provision than that of the second section. The law is general, and applies clearly to this cause.

The judgment will be reversed for the misdirection to the jury, and the cause remanded for another trial.

Judgment reversed.  