The first error relied on by the appellant's counsel to reverse the judgment, is that the plaintiff should have been nonsuited, because, he says, the plaintiff had no claims against the defendant except such as the law implies from the fact that he held a ticket. This is a great mistake. The tickets would be evidence in the absence of any other proof of a contract to carry the plaintiff. But the plaintiff alleged in his complaint, and has satisfied the jury, and they, by their verdict, have found, an express agreement by the defendant to carry the plaintiff from New York to San Francisco for a consideration paid to the defendant therefor. It was competent for the plaintiff to allege and prove such a contract, and the tickets furnished no evidence inconsistent with it. A check for a trunk, delivered by a railroad or steamboat company to a passenger, is evidence of the receipt of the trunk, and of an agreement to carry it from the place where the trunk is delivered to the place to which the company has agreed to carry the passenger. But the real contract is the one made with the passenger, by which the company bound itself to carry him and his baggage, from some place on its line, to some other place on or beyond its line.
Some stress is laid by the counsel on the fact that the arrangement for the tickets was made with Birdseye, and not with the plaintiff personally. Birdseye says he acted for the plaintiff, and so informed the defendant, who refused to insert the names of the several persons for whom Birdseye acted, because he, (defendant) said it was unnecessary; he, (B.) could transfer them; those for the steamship Ohio ran to B. or bearer, and those by the Republic to B. or order. I am not aware of any law that forbids a passenger to make a contract with a carrier for his carriage to San Francisco or elsewhere through an agent.
The next error complained of, is that there was no breach of the agreement. The jury has found there was, upon *Page 674 conflicting evidence, and that finding must be deemed conclusive. But if it was an open question, I should be constrained to find on the evidence in this case precisely as the jury has found — that the passengers on the Ohio and Falcon were most shamefully imposed upon, not only in the treatment they received on board such vessels, but in being induced to go to Panama under the assurance that they would not be compelled to wait more than ten days when they were compelled to wait some five weeks — the defendant knowing, when this representation was made, that it was impossible for the Republic to reach Panama within much less time than she actually reached there. It is proved beyond dispute, that the vessel made a rapid passage in view of the delays incident to a voyage round Cape Horn. If the defendant did not know the length of time required to make this voyage, he had the means of informing himself, or failing to do that, he should have disclosed the time of sailing of the Republic from New York and left the passengers to form their own conclusions as to the time of her probable arrival. By the representations made, and by omitting from the contract a provision which should relieve him from liability for the detention of the passengers at Panama, the law holds him bound to carry the passengers through with reasonable diligence and dispatch, and that they would not be detained at Panama, waiting for the Republic, beyond a reasonable time; and what would be a reasonable time to wait for her, the jury must determine, having reference to the representations on that subject made by the defendant.
Considering that the length of time the plaintiff and others would be detained at Panama was matter of opinion merely. Yet the plaintiff's agent made the time of detention at Panama the subject of discussion with the defendant, saying to him, that if those for whom he acted were to be detained any considerable length of time they would wait until the next steamer. It was in answer to this suggestion that the assurance was given, and it was then that good faith demanded that if the defendant meant to impose the consequences *Page 675 of delay on the passengers, he should have informed them the time was matter of opinion merely, and they must wait whatever the length of time might be, for the arrival of the Republic. Under these circumstances he became bound for the consequences of unreasonable delay, and he deemed ten days a reasonable detention at Panama. The jury was justified in adopting that length of time as a criterion by which to determine what would constitute an unreasonable detention.
It is said the delay of the Republic was caused by the act of God, and was not the fault of the defendant. The defendant should have provided for the contingency in his contract, and not having done it he cannot be excused. If the contract had been to carry by the Republic and in no other way, then it is probable the doctrine contended for might apply. But the contract was to carry in a reasonable time, and by the Republic, from Panama if she arrived there in a reasonable time after the plaintiff arrived, if not, then by some other vessel.
This was not a case in which the act of God can be resorted to as an excuse for a neglect to perform a contract. (2 Parsons on Contracts, 184; Barber v. Johnson, 19 Wend. 500; Harmony v.Bingham, 2 Kern. 99.)
These are the only points amongst the multitude raised on the trial deserving of consideration. And as they were properly disposed of, the judgment should be affirmed with costs.
Judgment affirmed. *Page 676