94
nDERAL RE;PQR'l'ER,
vol. 40.
sary:wbeunotice of inten:ded .deliveryl;J.as been properJy:given. According to the oootractJalso, wl1enthe gOQdsare thus landed OIl the wharf at whichtheship .lies for dieoharge; they are.to renrain. there at the risk of, the: cOlJl3ignee, ·after .they leave the ship's deck·. Taking all the clauses together, by thebi11 of lading the consignee has, inetfect, said tq the carrier: ,"If you: will transportm.Y goods to New York for the freight mentioned,Twill waive. notice of delivery, and be ready· to receive thelU when the ,ship is ready to unload them; and, if lam not, thus ready to receive them,,'lconsent they,may be landed,ang. remain at my risk at the wharf where the ship may lie for discharge." Although exempir ive provisions in bills oflading intended to relax the obligations of carriers in ,essential matters are not favored, and will not be extended beyond the narrowest cOllstruction of which they are reasonably capable, the courts cannot refuse to give effect to their explicit and unequivQcal meaning, unless they are void because contrary to public policy. The terms of the present contract would justify the carrierin discharging the goods at an unsuitable time 'Or place, so as to expose them to obvious danger of being inj ured. If an unfttwhal1f were selected, or unfit: weather, or an hour of the night when the consignee could not.have a fair opportunity to examine his goods a.nd remove them, the discharge would not be a good delivery within the proper interpretation of the contract. The language used is satisfied by placing upon it a more restricted meaning. It is not to be read so literally as to frustrate the beneficial objects of the transaction to which it relates, a.nd it cannot be SUPPO$OO that the pa.rties intended to protect the' carrier; against responsibility for his willful misconduct. Nor would the rules of interpretation of contracts authorize it to be read as intended to shield the carrier from, the consequences of his own negligence. It was declared in Magnin v. Dinsmore, 56 N. Y. 168, that a contract with a carrier will not be deemed to exceptlosBes occasioned by his negligence, unless that be expressly stipulated. The authorities a.re unanimous that no exception, which is not. contained in the con,tract itself, can beingrafted upon it by implication, either to excuse its non-performance,or the, exercise. of Qrdinary care in performing it. It suffices to refer to Navigation Co. v. Bank, 6 How. 344; Railroad Co. v.Manufacturing (]o., 16 Wall. 318; and Bank v. Expreaa Co., 93 U. S.174. ' Construing the 'contract as one that authorizes a discharge of the goods without notice to the consignee, but not as one relieving the ship from the duty of exercising reasonable care to protect them so long as they are, or ought to be, under the control ofthe master, it hardly seems debatable that such a contract is lawful. Judge Story says: "However universal the custom may be to deliver the goods to the owner at the place of destination,.still the parties may, by their contract, waive it, and j f they do the carrier is discharged." Story, .Bailin. § 541. It cannot be doubted that if after the arrival of a ship the consignee instructs the master that he will not require notice of discharge of his goods, but will be ready to receive them whenever the. ship is ready to unload at the wharf where she may lie, and that if he is the master may
'mE BOSKENNA BAY. '
95
leave the goods upon the wharf, the latter would be justified in acting upon the insfructions. NOfean it be doubted that if the goods were discharged under such circumstances, pursuant to the instructions, consignee would be estopped from questioning the sufficiency of the delivery. He could be heard to complain in case the master should discharge the goods at an unreasonable time, or should fail in some other respects to exercise reasonable care in respeot to them, but not otherwise. 'If it is competent for the' carrier and the consignee to agree upon a particular mode of delivery after the ship has arrived at the port of destination, it is not apparent why it is not equally permissible to do so at the time the goods :are shipped. It has been decided that a usage by a carrier, known to the consignee, to leave goode at his usual stopping places,without notice to the latter, is equivalent to an actual delivery of the goods. Gibsonv. Culver, 17 Wend. 305; McHenry v. Railroad Co., 4 Har. (Del.) 448; Price v. Powell, 3 N. Y. 322. Indeed the whole doctrine respecting constructive delivery by carrier to consignee is founded upon usage so geneiM that it has become a part of the commercial law. Aspecial usage has the, effect of an express stipulation, 1?ecause the law implies that it is incorporated in, the contract between the parties, and no usage which is contrary to public policy will be recognized. If a good submay be had without notice to tbecpnsignee, because.. t1o specialuaage or the course of business between the two parties sanctions it, upon principle and analogy the same result must follow where the parties have consented to it by an express It follows from what has been said that the ship in the present case delivery of the' goods to the libelant according to the contract, and the c0l1.uact was a valid one. Undoubtedly ,there are cases in which the'duty ala carrier to ii. consignee is not wholly satisfied bya,validsubstituted delivery of goods. The carrier, as in the case of the steamship lines or railway companies which have warehouses at the termini of their carrying points, may, pursuant to usage or the recognized modes of doing business, deliver to himself as warehouseman. He then becomes subject to the liabilities of a warehouseman. So, also, the carrier, although he may not become a warehouseman, may become a bailee of some other description, and remain liable in the capacity in which he receives or deals with the goods.. And under no circumstances is it conceivable that the carrier, in making a substituted delivery of goods, would be justified in abandoning them, or negligently exposing them to injury. Subject to these qualifications, the carrier discharges his whole duty to the consignee when he discharges the goods in conformity with the contract. The libelant's goods were discharged at the proper place, at a suitable time of day, in suitable weather, and placed in proper custody. It was at a season of the year when the weather is uncertain, and all that could reasonably be expected of the master was that he should select a day suitable at the time. Moreover, the other consignees who were present apparently were willing to take the chances of the weather during the coming night. The master had no reason to suppose that the libelant would have objected to taking the same chances if he had
FEDERAL REPORTER, . vol.
40.
been present. It is not suggested that there was anything that the.: master or agent of the ship could have done to protect the fruit overnight beyond placing it in the building. Nothing was done to this end by the other consignees. Negligence cannot be imputed to,the master for acts done strictly pursuant to previous authority from the libelant. The injury that happened to the fruit waS the consequence of a risk which the libelant had agreed in advltnce to assume. Negligence always rests upon a breach of duty, and there waf! no breach of duty on the part of the ship if the master discharged the libelant's property at the place and time, and in the manner, to which the libelant could not have reasonably objected had he been present. The libel is dismissed, with costs of this court and of the district court.
8AlTTA e. THE BosltENlU BAY.
MIRTO
e. Boo. October 14, 1889.)
BAHlI.
(Oirouit Oourt,B. D. Nf//lJ York.
In Admiralty. On appeal from district c.ourt. 86 Fed. Rep. 697. , These cases were. tried below with five others the same.steam-sbip. ]!'Iv. the libels were dismissed. and the libelants therein hann6t' appealed. The <llaimants appealedin the three cases in which the vessel was held liable, aDd the appeals came on to be heard together. No new proofs :were taken. ' Franklin &: Olifford and A. H. Bartlett, for libelants and appellees. E. B. OO'nver8. for claimaIits and appellants. , W.UJLA<llll, J. ,The decision in the calle of Ilolfe v. TM E08ktmna Bag. tmtI. 91. oontrols the (lecision of these cases. The decrees of the district court are reverse4. and the libels dlsmis,sed, with the cos'ts of that court and the costa of thil court to be paid by the libelants. ' " ,
BARLq,W fl. DELAKEY.
97 ale
BARLowet
al. v.
DELANEyet
(Of.rcuJ,t Court, E. D. Mi8sO'UtT'f" E. D. November 4. 1889.,
1.
COVENANTS-AGAINST KNOWN DEFECTS.
A covenantee can recover of t\le covenantor for breach of covenant, althougb at the time of the execution of the covenant the covenantee knew of the defect covenantEld against. Rev. St. Mo. § 669, provides that "a husband and wife may convey the real estate of the wife * * * by their joint deed; * * * but no covenant expressed or implied in such deed shall bind t1\e wife or the heirs, except so far as may oe necessary effectually to convey from her and her heirs all her right, title, and interest expressed to be conveyed therein." Held, that said section does not invalidate a covenant executed by a married woman conveying her separate estate in equity. Under Rev. St. Mo. 1865, c. 108, § 7, providing that "lineal and collateral warran· ties, with all their incidents, are abolished; but the heirs and devisees of every per. son who shall have made any covenant or agreement [shall be answerable upon such covenant or agreement] to the extent of the lands descended or devised to them, in the cases and in the manner prescribed by law, "-8 covenant by one rightfully in possession and owning a limited estate, to walTant and defend against the acts of certain persons named, ievalid. ( The covenantor had a life-estate, and her children the remainder, under the will of A. . The covenant was to warrant and defend against the acts of J., B., or A., "from whom the said [covenantor] derives title." Held, that the covenant was valid. A covenant to warrant and defend is broken only by eviction, or what is equivalent thereto, within the meaning of the statute of limitations·
.. SAME-By MARRIED WOMAN-SEPARATE ESTATB.
S.
BAME-VALIDITY.
"
BAME.
I.
LIMITATION OF ACTIONS-BREACH OF COVENANT-RUNNING OF STATUTE.
.. JUDGMENT-RES AnJUDICATA.
Complainant had formerly sued the defendants, the heirs of his covenantor, to enjoin them from asserting their title as remainder-men. It was decided that, as they took title not from their mother, the covenantor, but from d., no coyenant that she could make would estop them from asserting title. Held, that this was not res adjudicata, so as to-bar complainant from suing defendanta to SUbject a portion of the separate estate in equity of their mother, tne covenantor, to the pay· ment of damages sustained by breach of her covenant. Defendants asserted title paramount to the property, and threatened eviction, to prevent which the person in possession, holdinjt under complainant, purchased such title paramount, and complainant reimbursed the person in posseSSIon for the amount so paid under his warranty. Held, that complainant was entitled to recover the amount so paid in the action for breach of covenant. The costs and counsel fees laid out by complainant in resisting by suit thEi payment of such sum to the person in possession are not part of the damages to which he is entitled in the action for breach of covenant.
t.
COVENANTS-AcTION FOR BREACH_DAMAGES.
SAME.
In Equity. On final hearing on pleadings and proofs. Bill by Peter D. Barlow and others against John O'Fallon D"llaneyand others, the heirs of Mrs. Octavia Boyce, to establish a lien on certain lands held by her in her life-time as a separate estate. The lands in question hud been partitioned among defendants (the heirs of Mrs. Boyce) subsequent to her death. Administration upon her estate had been granted before the covenant of warranty referred to in the "pinion was broken, and before the bill was filed. W. H. Clopton, for complainants. Thomas K. Skinker and George M. Stewart,fof defendants. v.40F.no.3-7
FEDERAL Ul>ORTER, '\"01.40. BREWER, J. This case is now submitted for final bearing on pleadings and proofs. It was before thill court on demurrer to the bill a year ago, and an opinion was filed by my Brother THAYER, in which several questions were considered and decided. ·S6Fed. For.!l history of the facts out of which this litigation arises, see that opinion, and the case same 86 Mo. 583. A restatement of the facts is therefore unnecessary.,. .' :. Counsel for the defendants have challenged the conclusions expressed by my Brotl;ler THAYER,and h/tve, reargued to some extent the questions then decided. We have together examined those questions as as the others in the case,aIid All-Ve, reached the following conclusions: . It may he stated generally that the claim of complainants is that a covenant il1a from Mrs. Boyce has been broken, and this bill is filed to recover on account of that breach. ,It is, in the first place, insisted that there is no equity in the bill,becausethe extentof Mrs. 'Boyce's title was disclos,ed by the public of which complaitiants' ancestor, Mr. Barlow, was charged with notice. In other words, the claim is that a covenantee cannot recover of the covenantor forbreachofctl\Tenant if atthe time of the execution ofthe covenant he knows of the defect covenanted against.' A statement of this proposition carries its own answer. The very purpose of the covenant is protection to hold. thatpIiecan be protected only against unknown defects would be to rob the covenant of more than one-half its value, besides d,estroying the. force. of its language. .If from the force of a desired to eliJ;ninate,ki).pwD .defects, or to limit the covenant in anyway, it is easy tOSRy so. Heneral in its language it reaches tp all defectawiihin its terms,){nOwn::9r unknown· .Again, it is ilnsisted that the covenant relied on is' void because the covenant of a married woman. ''fhe property conveyed was a part of her in equity.. I dQ,not know that I can add anything tb ",hat has beensd wellsaidot;l this. subject in the opinion heretofore filed. The inv»lidityof covenanta affirmed in section 669 of the Missouri Revised Statutes refers by the terms of the section' to covenants in a joint, deed by husband and wife, (If. her statutory estate. By no reasonable, or propet:grammaticalconsf.ruction can the words "such deed," in the last clause of the section, refer to other than the joint deed named in the first clause. The deed ,here was no such joint deed. It was the separate deed of"the wife and herttustee, conveyingalbt belonging to ner'sapanl.'ee'estate in equity. That she had power to make such a conveyance without her husband, and 'that she can make any contract with rl'lspect to separate estate as freeIyas a feme 8ole, must now be conas settled 'by the decision of the supreme court in v. Shaw, 96, Moi 22, 8 S,' 'W.' Rep. 897. This is the declaration of that court uporHhe question: ' "But it may be urged that this deed waa utterly invali9., because it was exeeuted by the wife ·. However thisJ'nay be.l1s to mere statutory estates. which require a johlder of husband andwite in order to their valid exeeu-