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
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
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
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
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
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.