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


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

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