WESTERN DIST. pending, Raspillier, the present plaintiff, intervened and claimSeptember, 1834. ed the amount of the note sued on, as having become the purchaser thereof, and entitled to receive the proceeds.

RASPILLIER

vs.

BROWNSON.

An intervenor in a suit commenced by atLachment

be

tween the origi

After several years litigation, he finally obtained judgment for the net amount of the note, without interest. See case of Miles vs. Oden et als. 8, Martin, N. S. 214.

Raspillier now contends that he has sustained damages to the amount of his costs and interest on Brent's note, and that the attachment bond in the suit of Miles vs. Oden et als., in which Brent was a principal defendant, enured to his benefit. He seeks to fix this liability on the defendant, as surety in said bond.

Mr. Brownson appeared, and showed for cause that he could not be rendered liable on the attachment bond in this way; that if liable at all, he could only be made so by a civil suit in the ordinary way of petition and answer. The rule was discharged and the plaintiff appealed.

Brownson in propria persona, submitted the case without argument, no counsel appearing for the plaintiff.

Bullard J., delivered the opinion of the court.

The appellant, C. Raspillier, having intervened in a suit nal parties, al- commenced by attachment by Miles, against Brent, in which though he succeeds in obtain the present appellee was attorney and security on the attaching judgment, cannot proceed ment bond, and judgment having been rendered in his favor, on the attach for the amount claimed by him except interest, took a rule against the sure- on the appellee to show cause why judgment should not be ty for any entered against him, for the amount of damages, sustained by him, as the real party in interest.

ment

bond

posed damages,

because he is no

party thereto.

tract between the

There is no To this rule the appellee showed for cause, that he was privity of con- not a party to the suit, and that if he was liable for damages, intervenor in a as surety on the bond, they could be recovered only by regular suit, already begun by attach- suit. The rule was discharged, and the complainant appealed. We are of opinion that the court did not err in discharging attachment bond, the rule. Besides the obvious objection that Raspillier was

ment, and the

surety in the

and he cannot

8

avail himself of not a party to the bond, and that there existed no privity of the penalty in the bond. contract between him and the appellee, it appears that final

judgment had already been rendered in the case, as to the WESTERN Dist. principal demand, and it was too late to engraft upon it any September, 1834. new incidental question. Nothing remained to be done but to execute the judgment rendered on the appeal.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.

PORTER

vs. CURRY ET ALS.

PORTER vs. CURRY ET ALS.

APPEAL FROM THE COURT OF THE FIFTH JUDICIAL DISTRICT, THE JUDGE
OF THE SEVENTH PRESIDING.

The captain of a steam-boat, owned by several persons, (including the captain) has authority to contract for freight, to be carried according to the usual trade of the boat; and all the owners are bound by such contract, even without their assent given thereto.

The captain, as agent of a steam-boat, may make contracts to take effect in futuro, to carry freight according to the usual course of trade of said boat.

Where the captain of a steam-boat, contracts to carry certain freight, at a future day, between the well known termini of his voyage, and fails or violates such contract, the owners of the boat are liable in damages, for all the loss sustained by the party, with whom the contract is made. The measure of damages, and just criterion of loss to the owner, is the value of his property, at the place of destination, after deducting freight. The plaintiff alleges, that through his agents in New-Orleans, in February, 1829, he employed captain R. W. Curry, commander and part owner of the steam-boat Attakapas, then running in the trade, from St. Martinville to New-Orleans, to carry five thousand seven hundred gallons of molasses, worth one thousand four hundred and twenty-five dollars, from the

PORTER 28.

WESTERN DIST. Sugar plantation of Messrs. Dubuclet & Benoit, on the Bayou September, 1834. Teche, to New-Orleans; that to carry the said contract into effect, the plaintiff, by his agents, Fisher, Burke & Watson, CURRY ET ALS. in New-Orleans, shipped one hundred and sixty empty barrels, to be filled up with said molasses, at the said plantation, and shipped and returned from thence to NewOrleans, for which a freight of one dollar and twenty-five cents per barrel, was to be paid. The plaintiff further charges, that the said captain Curry failed to deliver more than sixty of the empty barrels, until long after the time agreed on; and that he failed to receive the said barrels, when filled up, and to return them according to agreement, as specified in a bill of lading for the empty barrels, and wholly failed and refused to receive the said molasses, although repeatedly requested to do so; and that the molasses remained two months, after they were to have been shipped, and until the close of the navigation, in July, 1829, when by fermentation and leakage, the molasses, in consequence of the failure of captain Curry to perform his contract, were wholly lost, except about fifty barrels, which were sent by another conveyance. He estimates the loss sustained, in consequence of the non-fulfilment of said contract, at one thousand six hundred dollars, for which he avers the captain and owners are liable, and prays judgment accordingly.

The defendants plead a general denial; that they were not bound by the contract, which appeared to be made by one B. Lafosse, as clerk of the steam-boat, who signed the bill of lading; that he had no authority to sign such an instrument, and that the contract alleged to be made, in plaintiff's petition, is entirely out of the usual course of business, which the said clerk was engaged to perform; they aver, that if they were bound, they have fully complied with their obligation; that they delivered the one hundred and sixty empty barrels as directed, which were never put in a situation to be returned by the steam-boat; so that the non-compliance with the contract, as alleged, was solely the fault of the plaintiff or his agents; that if all of said empty barrels were not delivered, it was owing to the danger of the

navigation, for which they are not responsible. They aver, that more than one year has elapsed, previous to instituting this suit, from the time of the contract; consequently the action is barred by the prescription of one year.

The plaintiff proved by several witnesses, the agreement to carry the molasses to New-Orleans, as alleged; that captain Curry, when he delivered the last lot of empty barrels, late in the season, from another steam-boat, (the Lady Lafayette) positively refused to receive the molasses, at the sugar plantation of Messrs. Dubuclet & Benoit; and that the molasses, with the exception of about fifty barrels, were wholly lost to the plaintiff; and the remaining fifty were shipped by another conveyance, but were so sour and leaky, as to be scarcely of any value.

The clerk of the steam-boat swears, he filled up and signed the bill of lading, according to the orders of captain Curry. It stipulates as follows:

"Shipped in good order, &c., by F. B. & W., on board the steam-boat Attakapas, whereof Curry is master, now lying in the port of New-Orleans, one hundred and sixty barrels, deliverable to Messrs. Dubuclet & Benoit, &c., to be filled up with molasses and returned to the shippers, &c., in like good order and condition, at the port of New-Orleans, (the dangers of the seas only excepted) unto the shippers, (F. B. & W.) or to their assigns, he or they paying freight for said barrels of molasses, at the rate of one dollar and twenty-five cents a barrel, &c. In witness whereof, the master or purser of the said vessel, hath affirmed to three bills lading, &c. Dated, New-Orleans, the 6th day of February, 1829." "B. Lafosse."

The defendants proved, that captain Curry stopped once for sixty or seventy barrels, which were not then ready.

Dubuclet proved, that he and Benoit sold the quantity of molasses stated, (five thousand seven hundred gallons) for thirteen horses, estimated at seven hundred and fifty dollars. It was also proved, that Fisher, Burke & Watson were the agents of plaintiff, and that the molasses were worth

WESTERN DIST. twenty-eight cents per gallon, in New-Orleans, at the time September, 1834. they were to be delivered.

PORTER

The defendants' counsel moved the court to charge the CURRY ET ALS. jury, that the contract arising on the bill of lading, to carry property or freight, at a future day, made by the captain, was not binding on the owners of the boat, unless the captain was specially authorised to make such a contract, and that the power of making such a contract, is not included among the general powers possessed by captains to make contracts, which are binding upon the owners of vessels, &c. The judge refused, and charged the jury to the contrary of that requested. The defendants' counsel moved further, that the claim of the plaintiff, being for damages arising from the non-delivery of the barrels, &c., was barred by the prescription of one year; but the judge charged the jury, that the plaintiff's claim consisted of two branches, one for damages, for the nondelivery of the barrels received on board; and the other for damages, for not taking on board molasses, &c.; that as to the first claim, the plea of prescription had attached; but that as to the second, the court was of opinion, that said plea was not applicable. The defendants moved several other clauses, to be given in charge to the jury, to all of which, and those stated, the judge refused, and a bill of exceptions was taken to said charge.

The jury returned a verdict of nine hundred and eightytwo dollars fifteen cents, for the plaintiff, and after overruling a motion for anew trial, the district judge rendered judgment, in conformity to the verdict.

The defendants appealed.

Bowen and Lewis, for the plaintiff.

1. In this case, the defendants resist the claim for damages, on the ground that they were not put in delay before suit. This was not necessary, as a party may be en demeure by the mere operation of law, when the breach of the contract is declared by the law, equivalent to a default. La. Code, art. 1905, No. 3.

2. When the thing to be given, or done, by the contract, was of such a nature, that it could only be given or done,