EWART against MACPHERSON & CRANE.
This was an action brought at the last Gore District Assizes, in the town of Hamilton, to recover the value of goods entrusted to the Defendants by the Plaintiff, at Kingston, in the Midland District, to be forwarded to Montreal, and there to be delivered to the agents of the plaintiff. The facts proved were, that the Defandants were common carriers between Kingston and Montreal; that they received at Kingston, to be forwarded to Montreal, 2104 barrels of flour, of the value of 30s. 3d. per barrel, as made out by a calculation of L. Moffatt, Esq.; that they by their letter, in writing, addressed to the plaintiff, admitted that the flour was received by them at Kingston, to be carried to Montreal, and to be delivered there to Messrs. Gillespie, Moffatt & Co., the consignees; that the flour was the property of the Plaintiff, and was received between the 6th and the 17th day of April, 1840; that on the night of the 17th, or on the morning of the 18th, an accidental fire occurred at Kingston, while the flour was there, and consumed the whole with the premises of the defendants, in which the flour was placed; that previous to the fire, the navigation from Kingston to a distance of at least 100 miles in the direction of Montreal, by way of the St. Lawrence River, was open; that at the time of the fire the navigation was fully open; that no charge was paid by the defendants in their usual course of business, when the navigation was fully open; that no charge was made by the defendants for warehousing, the loading and unloading, the tolls, and the carrying, was made; that on the 4th of February the defendants wrote to the plaintiff, requesting him to give all plaintiff's flour to the defendants to be forwarded, and at the same time mentioned that the barges, by which method of conveyance the property was carried, were all below, and were required to come up before they would be in a situation to transmit the property from Kingston after its receipt; that before the fire two new barges, built at Kingston during the winter, were despatched by the defendants to Montreal, in their usual course of business, and proceeded downwards; that the defendants at times receive property from the lake craft into their barges direct, without its being stored or put upon the wharves at all, which is put in transitu at once, and at other times place it in their stores or upon their wharves, or other convenient place near their warehouses and wharves, until they are enabled to put the property in transitu; that the time the property remains there depends wholly upon the state of the navigation and the quantity of business to be done; that the defendants through their agents, Gunn & Brown of Hamilton, recommended the plaintiff not to send any property to them to be forwarded until some time in the month of May; that on the 6th day of April Mr. Gunn proceeded to Kingston, as the agent of the plaintiff, to make arrangements for the forwarding of the plaintiff's property, and went to two or three of the forwarding houses in the town of Kingston besides the defendants for that purpose; that he found when at Kingston that the defendants would be able to forward Plaintiff's property earlier and better than any other house, and he consequently left the property which he had under his charge (two schooner loads) with them; that they agreed with him, and then undertook to receive the property and carry it with the utmost despatch, it being a great desideratum for the plaintiff to have his property in Montreal as early as possible; that it is generally understood that property is placed in transitu immediately upon its receipt, and that the reason that the defendants desired that the plaintiff's property should not be sent down to them earlier than the first week in May, was because they had not sufficient accommodation to receive and forward it.
The Counsel on both sides agreed upon the law respecting the legal liability of common carriers and warehousemen, viz., that of a carrier to be "for all losses except such as come by the act of God or the Queen's enemies," under neither of which many cases have decided an accidental fire could be classed; that of a warehousman, that he was not liable unless he had been guilty of ordinary negligence, which is defined to be "the omission of that care which every man of common prudence, and capable of governing a family takes of his own affairs." The case the plaintiff wished to make out was, that the property was received by the defendants at Kingston in their character of common carriersr, for the purpose of carrying from thence to Montreal; and the defendants attempted to qualify their acceptance, first, by showing that the navigation was not open, and that their regular business for the season had not commenced; and secondly, in consequence of the request made by defendants to Plaintiff, not to send his property until the first week in May, that the receipt by the defendants before that time, and before the fire, was in the character of warehousemen, and not as carriers, with the liability of the former only and not of the latter.
The substance of the evidence was as above stated and although His Lordship Mr. Justice Jones, in his charge to the Jury, leaned towards the defendants, yet in his conclusion left it to the Jury to say from the evidence in which character the receipt took place. If as carriers, then to find for the plaintiff, with damages to the amount they thought the property was reasonably worth; if as warehousemen, for the defendants.
The Jury, after some deliberation, returned a verdict for the plaintiff, and £2787 16s. damages.
The Executors of the late James Crooks, the younger, deceased, versus same. The facts of this case were nearly similar to the last, and what difference did exist was in favor of the Plaintiff's recovery.
Verdict for plaintiffs, and £1596 damages.
p.2 June 4th - There has been a perfect avalanche of vessels in from the West, within the past two days with such vast quantities of wheat and flour on board as to astonish the dealers. Of forty sails in, three fourths of them are from Cleveland and other Ohio ports....
[Buffalo Com. Adv. & Journal]
ad for Excursion to Lake on the Mountain on steamer Brockville, Captain Maxwell, on Monday the 27th.