Henry Whitin, Respondent, v. Charles H. Pendegast et al., Appellants

Henry Whitin, Respondent, v. Charles H. Pendegast et al., Appellants. (Argued November 16, 1872; decided November 19, 1872.) Plaintiff delivered to defendants, common carriers at Charleston, fifty bales of cotton to be transported to New York in their steamer Star of the South. The bill of lading acknowledged “ receipt on board,” and the referee so found. In fact, it was on land, and a portion was sent by another •ship. Plaintiff received from this ship thirteen bales. The Star of the South was disabled on the voyage; was taken to Baltimore and there discharged her cargo. Plaintiff authorized one Cole to demand and receive from defendants at Baltimore thirty-seven bales. He made the demand and paid the freight but received only twenty-two bales, that being all the purser could identify as belonging to plaintiff. A number of bales, not identified, were taken possession of by agents of parties claiming cotton by this ship and were forwarded to New York, and of this plaintiff received, twelve bales, leaving him three bales short, for which he brought suit and obtained judgment. Held, that variance between the finding of the referee, that the cotton was “ on board,” and the fact, was immaterial. ‘The gravamen of the action was the non-delivery of the. three bales in New York in pursuance of the contract. That plaintiff could accept delivery at an intermediate port and such acceptance would terminate' the voyage and defendants’ liability, but that no such delivery and acceptance appeared in this case. 1st. There was no finding and no fact to authorize it that the cargo of the Star of the South included the thirty-seven bales. 2d. Plaintiff was not bound by any act of Cole in accepting, in common with other claimants, cotton not identified as a delivery, as his authority was simply to demand and receive the thirty-seven bales. John N. Whiting for the appellants. Walter Edwards, Jr., for thé respondent. [MAJORITY — Andrews, J.,] Andrews, J., reads opinion for affirmance. All concur. Judgment affirmed.