This case was disposed of by the court; each party asking that a verdict be ordered in his own favor, and neither requesting that any issue of fact be submitted to the jury. The sole question, therefore, is whether upon some reasonable view of the facts the judgment for the plaintiff can be sustained; for which purpose, where the evidence is contradictory, we must assume as having been found, where that could fairly have happened, the version which leads to an affirmance.
That the inland freight was earned and belonged to the plaintiff; that its amount was fixed and known; that the owners of the vessel collected it upon through bills of lading drawn by the plaintiff, assuming to act as agent for the ship, and upon which the property was delivered to the consignees; that the captain promised in accordance with custom to give his draft for such inland freight before the sailing of the vessel, and was notified that the plaintiff would not deal with Dill Radman, the charterers; that the property was delivered taking the mate's receipt, which was afterward exchanged for the captain's receipt; all these are facts, either uncontradicted or supported by the preponderance of proof, and which justify the judgment rendered. The effort of the owners is to shift their liability to the charterers, and ignore any contract with or duty to other persons. In doing so they rely largely upon the fact that the captain issued no bills of lading for this specific part of the cargo. Assuredly he ratified those which were issued. They were drawn at Chicago, and covered the entire transportation from that city to Antwerp, specifying the Fernwood as the ocean carrier, signed by Warrack as agent, "severally and not jointly," and so claiming to represent and *Page 97 bind the plaintiff as to the inland transportation, and the ship as to the remainder. These bills of lading we must assume from the proof were shown to the captain before he sailed, with their statement of the separate amounts of the inland and ocean freight; who in no manner repudiated the authority or declined the shipment under it, but commented only upon the amounts; and who, on arriving at Antwerp, delivered the goods to the parties holding the bills signed by Warrack and not upon any order or authority of Dill Radman; who collected the freight according to their terms, and so recognized the shipment as made under the Chicago bills of lading. Warrack's agency was thus ratified instead of repudiated. It is true that the captain claimed in his evidence to have shipped his whole cargo for Dill Radman, issuing the bills of lading when and as presented by Dill Radman, and yet he is forced to admit that when at sea he found he had cargo for which he had issued no bills of lading, which, therefore, was not shipped by the charterers, and which was represented first by the mate's receipt given "subject to charges," and then by his own given in exchange; and so it is easy to put confidence in the plaintiff's proof which harmonizes and explains the known facts in the case. It may very well be that Dill Radman assented to this shipment as part of the cargo, but nothing in the case indicates that the property in question was delivered to them, or upon their responsibility for the inland freight, but every thing points to a shipment by the plaintiff and upon the responsibility of the vessel as it respected such freight. We can see no just ground upon which the money of the plaintiffs, collected upon the bills of lading which they issued, received for them and known to be due to them, could be diverted from their ownership and paid over to Dill Radman, or involved in the ship's account with that firm. On the 21st of February, 1878, the agents of the owners were notified in writing, formally and precisely, of the plaintiff's claim, and forbidden to pay any of the inland freight to Dill Radman; and it appears that no remittance for anybody in New York, on account of such freight, was made until March *Page 98 of that year, when a balance of about $1,000, lessened by a claim against Dill Radman for four days' demurrage at £ 50 a day, which they disputed and have never allowed, was sent to the owners' agents in New York and appears to be still held by them. If, by the terms of the charter-party, demurrage was a lien upon the cargo, it was only so upon the goods shipped under it by Dill Radman, and we are satisfied that the shipment in question was not of that character, but under the plaintiff's bill of lading, ratified and adopted on behalf of the vessel.
The judgment should be affirmed, with costs.
All concur.
Judgment affirmed.