Railroad Company v. Lindsay
71 U.S. 650 (1866)

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U.S. Supreme Court

Railroad Company v. Lindsay, 71 U.S. 4 Wall. 650 650 (1866)

Railroad Company v. Lindsay

71 U.S. (4 Wall.) 650

ERROR TO THE CIRCUIT COURT FOR

THE EASTERN DISTRICT OF LOUISIANA

Syllabus

1. The article 3499 of the Civil Code of Louisiana, which prescribes that "actions for the payment of freight of ships and other vessels are prescribed by one year," does not apply to a case where the plaintiffs were shipbrokers only, and not shipowners, and where the contract was not one of affreightment.

2. A demand cannot be regarded as an open account where there is a contract which is the foundation of the claim and which, though not fulfilled according to its letter either as to the time or place of delivery, yet, with the qualifications which the law under such circumstances imposes, determines the respective liabilities of the parties.

3. Where none of the evidence offered by a plaintiff is objected to below and no exception taken to the findings of the court there, objection cannot be made in this Court.

4. An allegation of variance between the averments of a petition and the findings of the court, where there is no allegation that the findings were unwarranted by the proofs or that the judgment does not conform to the law and justice of the case as presented by the findings, will not be sustained.

5. Such case comes within the thirty-second section of the Judiciary Act, curing imperfections, defects, or want of form in the pleadings or course of proceedings except such are specially demurred to.

Lindsay & Co., ship brokers of London, filed their petition in the Circuit Court for the Eastern District of Louisiana in which -- alleging a written contract between themselves and the New Orleans &c., Railroad Company, the company bound itself to pay them "freights" at the rate of 25s. per ton "in consideration of freightage to be furnished to Algiers, opposite New Orleans, for certain iron rails," &c. -- they averred that, in pursuance of the aforesaid contract, they did furnish freightage for several thousand tons of such rails from Wales to Louisiana, and that the balance of the freight upon the rails due them was $18,000 &c.

Page 71 U. S. 651

The defendants denied that the contract had been performed, claimed damages by way of "reconvention," and "pleaded the prescription of one year and three years" -- that is to say, set up in argument the bar of limitation of one year, under article 3499 of the Civil Code, which prescribes that actions "for the payment of the freight of ships and other vessels are prescribed by one year," and the limitation of three years, to which an act of the Louisiana Legislature limits actions upon open accounts.

The court found, on a submission of the case to them, in accordance with the Louisiana practice, that a large portion of the rails had not been delivered within the time stipulated for, and that of these a portion had been sent not to Algiers but to New Orleans, for the cost of removing which to New Orleans the plaintiffs were entitled to recoup; that the time within which the freightage was to be furnished had been extended and limited by a subsequent agreement to a date fixed; that the railroad company refused to receive any rails delivered after that date; that the manufacturers resumed possession of these; that the company had not proved any special damage as resulting from the delay mentioned, and that this delay had been owing to the acts of Lindsay & Co., who had found, during the Crimean war, a more profitable employment for the ships.

The court declared that the contract was not a contract for the payment of the freight of ships and other vessels within article 3499 of the Civil Code set up, and overruling also the prescription of three years given by statute for open accounts, gave judgment in favor of the plaintiff below "for the whole amount of freightage, at the rates specified in the contract," allowing certain credits and the cost of transferring to Algiers those rails which had been improperly landed at New Orleans.

The case came here on error, two errors being assigned.

1. That the court allowed the plaintiffs, Lindsay & Co., to recover on an express agreement, when it was found that they had never performed it.

2. That they had overruled the plea of prescription.

Page 71 U. S. 654

MR. JUSTICE SWAYNE delivered the opinion of the Court.

The plaintiffs in error were the defendants in the court below. The plaintiffs in that court filed their petition, setting forth a contract between them and the defendants whereby the plaintiffs agreed to transport from Wales, and deliver at Algiers, opposite to New Orleans, certain railroad iron for the defendants, and the defendants agreed to pay them a stipulated compensation for such transportation and delivery. The petition averred performance, and sought to recover the specified compensation, less the amount which the plaintiffs had already received. The defendants, by their answer, denied performance, claimed damages by reconvention for nonperformance, and pleaded the statute of limitations.

The parties waived the intervention of a jury, and submitted the case to the court. The court found the facts

Page 71 U. S. 655

specially and gave judgment for the plaintiffs below. The findings of the court are set forth in the record and are to be regarded as a special verdict. The court found, among other things, that the iron had not been delivered within the contract time, but that it had been agreed between the parties in September, 1854, that the plaintiffs should allow the defendants eight hundred pounds on account of past delays, and that the time for the further deliveries should be extended to the first of December following; that the defendants refused to receive the iron tendered or shipped after the last-mentioned time, and that it was thereupon disposed of, with the assent of all concerned; that the defendants had not shown any damage arising from the delays; that the delivery of the iron at New Orleans was a breach of the contract, and that the defendants were entitled to recoup the cost of removing it to Algiers. Upon these principles the amount to be recovered was computed and judgment was rendered accordingly. The court was of opinion that the contract was "not a contract for the payment of the freight of ships and other vessels within the 3449th article of the civil code" of the state, and overruled the defense that the action was thereby barred. No bill of exceptions was taken, and but a small part of the evidence appears in the record.

Two errors are relied upon; one of them relates to the statute of limitations. We think the ruling of the court upon this subject was correct. The findings show that the plaintiffs were not shipowners, and that their contract was wholly different from one of affreightment. The article of the code relied upon had therefore no application to the case. Nor can the demand be regarded as an open account. The contract was the foundation of the claim, and though not fulfilled according to its letter either as to the time or place of delivery, yet, with the qualifications which the law under such circumstances imposes, it determined the respective liabilities of the parties. The plaintiffs could not recover more than the contract price, and the recoupment

Page 71 U. S. 656

of the defendants was governed by its requirements on the part of the plaintiffs. Its provisions were elements in the case vital to the rights of both parties. By their light and the law arising upon the facts as developed in the evidence the court was to be guided in coming to its conclusions.

The other error insisted upon is that there is a fatal variance between the facts as found by the court and by the case made by the plaintiffs' petition.

It does not appear that any of the evidence offered by the plaintiffs in the court below was objected to by the defendants, nor does it appear that any exception was taken when the court announced its findings, or subsequently when the judgment was entered.

It was in the power of the court to permit the petition to be amended, and the proper amendments would doubtless have been made if the objection had been stated. It is presented for the first time in this Court. Under these circumstances it must be held to have been waived by the plaintiffs in error in the court below, and they are concluded by that waiver in this Court.

There is another ground upon which this exception must be overruled. It is not alleged that the findings of the court were unwarranted by the proofs, nor that the judgment does not conform to the law and justice of the case as the case is thus presented. The objection is purely technical. It lies wholly in the variance between the averments of the petition and the facts as found by the court.

The thirty-second section of the Judiciary Act of 1789 declares that the courts of the United States

"respectively shall proceed and give judgment according as the right of the cause and the matter in law shall appear unto them, without regarding imperfections, defects, or want of form in such writ, declaration, or other pleading, return process, or judgment or course of proceeding whatsoever except those only in case of demurrer, which the party demurring shall specially set down and express, together with his demurrer as the cause thereof. "

Page 71 U. S. 657

The effect of this provision is decisive. No case more proper than the one before us for its application can be presented.

The judgment below is affirmed with costs.

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