Opinion of the Court delivered by
Tompkins Judge.Camden & Co., under the provisions of the act of 19th of March 1835, p. 102, of the digest of that year, commenced their action against the steam boat Georgia in the circuit court of St. Louis county, and that court having given judgment against them, they prosecute their writ of error to-reverse that judgment.
The first count in the declaration contains a statement, that the master and commander of the steam boat Georgia, lying at Pittsburg, received on board of said boat, 16 bales of dry goods, one bale of dry goods, one cask hard ware, one box of shoes, four band boxes, and" one trunk, all in good order, &c.- to be conveyed and safely delivered at St. Louis, to- said' Camden & Co., the unavoidable dangers of the river navigation and fire excepted;, and that the said Short did deliver a part of said goods, &c., at St, Louis, .but did not take care of,, and safely and securely convey the residue of said goods and merchandize, on board of said, steam- boat as aforesaid, from Pittsburg to St. Louis, and deliver the same to the plaintiffs, hut that the remaining, part of said goods &c.,. of the value of one thousand dollars, wras wholly lost.
In the second count it is stated, that the plaintiffs caused to lie delivered to said Short, on board of said boat, divers other goods and merchandize of the like number, quantity, quality description and value as those in the first count men-*384^one<^’t0 ta^en care &c., delivered to the plaintiffs at St. Louis? and that said Short took so little care of said goods, &c., that the said goods, being of the value aforesaid, were wholly lost to the plaintiffs, &c.
In the third count it is stated, that in consideration that the said Short, at his special instance and request, had the care and custody of divers goods and merchandize of the said plaintiffs, to wit: goods and merchandize of the like number, quantity, quality, description and value, as those in the first count mentioned, he the said Short undertook, &c., to take due and proper care thereof, but took so little care that the said goods, &c., were taken and abstracted from the boxes, &c., and wholly lost to the said plaintiffs, to their damage of one thousand dollars, &c.
The act above mentioned provides, in the second section, that any person having a demand against the owners of a boat for damages for the non-performance, or mal-performance of a contract of affreightment, or of any contract touching the transportation of property instead of proceeding against the master, owner, agent or consignee of the boat, may at his option, institute suit against such boat by name. In the fourth section the act provides, that the complaint shall set forth the plaintiff’s demand in all its particulars, and on whose account the same accrued; it shall be verified by affidavit either of the plaintiff or of some credible person for him, and shall stand in lieu of a declaration.
To this declaration a demurrer was filed; the plaintiffs applied for leave to amend; leave was given them, and the order of court granting the leave to amend was rescinded, and on demurrer the judgment of the court was given for the defendant. To sustain his demurrer, the defendant in error contends: 1st. That the complaint, purporting to set out the demand of the plaintiff’s in all its particulars, does not so set it out; but sets it out in general terms, contrary to the requirement of the statute. 2d. That the complaint being sworn to by one of the plaintiff’s contains three counts, each repugnant to, and inconsistent with the other. 3d. That the circuit court committed no error in rescinding the order granting leav.e to amend.
jn a compi’t mal- perform-tract ofaaf?n" p0rtation and pro^er^r° the description of ^edP more particular than the description of bill of lading. It is no obis íu-m <5,fferjt suit tbeevi-^aintifr'may üe abíe t01st. The first objection urged against the declaration seems, for any thing appearing on the record, to be of no fojce, so far as it concerns the first count in the declaration. In that count it is stated that Short received on board 16 bales of dry goods, and 1 bale of goods, one cask of hardware, one.box shoes, four band boxes, and one trunk. It could answer no good purpose to the defendant to have any statement more particular than that of the number of boxes &c. delivered to him. If the steam boat proves that the boxes, &c. were delivered by it in such order as they were ed, it has proved all that is necessary to throw the burthen of proving special damage on the complainant. It can never be expected that the agents of a boat can or will examine the contents of a box or package of goods, which they undertake to transport; it would avail them nothing then, to ... , . . state m the complaint the contents oí such box or package, The plaintiffs will be compelled to resort to testimony to prove the contents of such box or package when delivered to the boat, and the quantity deficient or damaged when delivr ered to them. The complaint then appears to be sufficiently particular.
The second objection, viz. that the complaint swornjto, contains three counts, each inconsistent and repugnant to the others is, in my opinion, equally unfounded. The act requires that the complaint shall be verified by affidavit. The substance of the complaint is the amount of damages claimed. I can see no reason why a plaintiff should be barred of the usual privilege of stating his injury in different manners, to suit the evidence he may be able to produce. the most honest and diligent may be deceived as to what he may be able to prove. Every plaintifFknows, that he not honestly prefer a claim for a greater number of &c. than he delivered, ,and, therefore, he is required to set forth the complaint in all its particulars, as he may be able to prove; and not to complain of the defendant bucause he does not deliver twice as many boxes, &c. as were ceived on board of the boat. But every plaintiff cannot conveniently, or rather without great inconvenience, know how much damage he may have sustained by the negligence *386aSents k°ats’ when the goods have been darn-aged; or, in many instances, when boxes have been opened, and in whole or in part emptied. The essential thing is that the-plaintiff do not swear to too much damage; to enable the defendant to prepare for his defence, it’ cannot be material that the plaintiff should set forth his demand, in the .complaint, more particularly than the several parts and parcels thereof are enumerated in the bill of lading. We have every reason to believe that the complaint, or declaration, in this case, is as particular as the bill of lading. It is then sufficiently particular; that is, the statement of the cause of action, is sufficiently minute and particular to comply with the requisitions of the Statute.
The- com-amended''Rhv a oommonlaw denlaration; and, it is the court tofgran° permission to ordinarycases a-ttom’n law.In the second and third counts the subject matter is thus stated: divers other goods and merchandize, to wit, goods and merchandize of the like number, quantity, quality, description and value as those in the first count mentioned. There is in the first count no statement either of the number or quality of merchandize; indeed, I do not well understand how the term “number” could be applied to goods and mer - chandize. If it had been stated in the second and third counts, that the master and commander had received on board, &e. divers other goods and iri'erchandize, to wit, 16 other bales of dry goods, &c., as in the first count, the statement would, in my opinion, have been well enough made, iiut he has not done so. The demurrer to the declaration in this caséis general, and may be sustained as to part of the pleadings demurred to, and overruled as to the residue, as if a separate demurrer had been filed to each p’eading so demurred to. See 16th section of the 3d article of the digest of 1S35, p. 459. The demurrer then will he sustained as to the second and third counts, and overruled as to the first,
Ns to the third point, to wit, the rescinding of order of COurt granting leave to amend, no reason is seen why a com- . . ° , . 7. . , J plaint of this kind should not be amended like a common de-c^ara^on‘ ^iecourt should have granted that, permission, as in ordinary cases at common law. As the case is decided on another point, it is useless to say more on this head. The judgment of the circuit court is reversed, and the cause :r *387remanded, with leave to the plaintiff to amend his complaint if he wish to do so.
Opinion of McGirk Judge.I am of opinion, that the leave to amend ought to been allowed. I am of opinion, also, that the first count is well enough except as to the breach, and that that should have.been at least as special, as to the goods not delivered, as the bill of lading is. [ concur in reversing the judgment.