Opinion of the. Court delivered by
Tompkins Jvdge.Erskine and Gore sued the steam boat Thames in the cir-. cuit court. Judgment, in that court, was rendez'ed in favor *372of the steam boat; and Erskine and Gore prosecute this writ of error, in order to reverse that judgment.
Not guilty, .is not a good plea to a complaint, founded upon #on-itract, filed a-igainst a steam ¡boat, under the act eon-•CGrning "boats and vessels.” The plea must correspond with the nature of the complaint Where the1 complaint is founded upon >the non-por iformance of a ( contract of affreightment for the deliv-®he piafn°t0¡ff‘ av®r plaint a de-^?do*rJ;he the goods. The earner is bound to “[• Sooás t0 whom they knownto him, re^onabhT a Having done this, he would have ■ duty an contract, by goods tcTfuch Pe»on on the river, at^-he usual place' of delivery.*372The complaint set forth, that the complainants had a demand against the steamboat Thames; that on the 6th day of May 1839, certain goods were shipped on board of the said steam boat, which were to be delivered, without delay, (the dangers of the river navigation, and fire, excepted,) to the plaintiffs at the port of St. Louis Missouri, they paying freight, &c.: and, that neither the said goods, nor any part thereof, had been delivered to the plaintiffs. To this complaint, the steam boat Thames, by its attorney, pleaded not guilty, and the plaintiffs demurred specially to the plea, assigning for cause, that the complaint is founded on a contract, and that the plea sounds in tort. The action in this case is certainly founded on the contract, and the authorities are, that the plea of not guilty, to a declaration in assump-sit, is bad on demurrer, but would be aided by verdict. Sec. 1st, Chit. p. 511, note s., and authorities cited.
But it is contended, that, the complaint, or declaration, is bad, in not averring a demand of the goods. The plaintiff’s rely on the 540th, 543rd and 545th sections of Story’s Commentaries, to prove, that, when a carrier undertakes to deliver the goods to the owner, he is chargeable for any loss before such delivery, although in all respects, he has followed the general custom of the place. The commentator says: “A question often arises in practice, whether the carrier is ‘bound to make a personal delivery of the goods to the own:er, or not. This may admit of different answers, according ‘to circumstances. The manner of delivering the goods, and ‘consequently the period, at which the responsibility of the ‘carrier will cease, may in many instances, depend upon ‘a special contract between the parties. If there is any special contract between the parties, or any local custom or ‘usage of trade on the subject, that will govern; the former ‘as an express, the latter as an implied term in the contract* ‘But in the absence of any special contract, or custom, or ‘usage, probably no general rule can be laid down. How‘ever this may be, it seems clear, that carriers are bound to ‘give notice of the arrival of goods to the persons, to whom *373'they are directed, if they are known to them, and within 'resonable time; they must take care, at their peril, that 'goods are delivered to the right person; for, otherwise, 'will become responsible.” The contract in this case, to deliver to the plaintiffs, or to their assigns, at the port St. Louis. The rule last above mentioned, viz: the carrier . ought to give notice of the arrival of the goods, is what ought, in my opinion, to govern this case. The plaintiffs could not reasonably be expected to wait at the port, perhaps a week or more, in expectation of the arrival of goods. Yet it would be their duty, to be either themselves in the neighborhood, or to have an agent near, so that the carrier, by using a reasonable degree of diligence, might find ° , , ° . out some person authorized to receive the goods. Having done this, he would have done his duty on this contract, by delivering the goods to such person, on the bank of the ver, at the usual place of delivery. The complaint, or claration, of the plaintiffs, appears to me have been wp]l framed. The defendant might have pleaded, if it werp true, that he was ready to deliver, and made diligent enquiry, <fcc., or any other matter in bar which would have been , , ’ good plea.
The circuit court, in my opinion, committed error in deciding, that the plaintiffs should have averred a demand in their complaint or declaration, and its judgment for that reason, ought, in my opinion, to he reversed, and such being also the opinion of others members of this court, it reVersed.