McCullough v. Hellweg

Yellott, J., delivered the opinion of the Court. The appellee, who was the plaintiff below, purchased of Albert Edelin in St. Mary’s County, fifty-three cords of ²⁷³ fire-wood, and shipped it on board a vessel belonging to the appellant. By the terms of the contract, as shown by the bill of lading, this cargo was to be delivered in Baltimore, at Hellweg’s wharf, to the appellee or his assigns. The bill of lading did not determine the amount for freight to be paid, and after the arrival of the vessel at the said wharf, and the unloading-of about one cord and one-half cord of the wood, the captain was directed by tho appellant to carry the cargo to McCullough’s wharf, which is about four miles distant from the point of delivery agreed upon in the said bill of lading.

The appellee brought an action of replevin for the wood, and obtained a judgment for the property replevied, and damages for its detention ; and from that judgment an appeal has been taken. There is evidence in this record tending to show that although the amount for freight was not specified in the bill of. lading, it was agreed between the captain of the vessel and the appellee, that the charge for freight should be $1.50 per cord. It was also shown by the testimony of a number of witnesses, who are large dealers in wood, “ that there has been, and now is, a well known custom existing in the port of Baltimore, that the master of a vessel shall first, unload his cargo of wood upon the wharf of the owner of the cargo, and pile the same in a suitable form for measurement and inspection ; that it is then measured and the freight ascertained according to the measurement, and that freight is not demandable before the cargo is landed on the wharf.” It was also shown that the sum of one dollar and a half per cord was a fair rate for the freight, and that the plaintiff was then and there always ready to pay that amount, and did afterward pay it into Court upon the refusal of the defendant to receive it. There is no evidence tending to contradict the testimony in relation to the existence of the aforesaid custom in the port of Baltimore.

As has been already stated the appel ²⁷⁴ lee introduced evidence tending to show that the sum of $1.50 was a reasonable rate for freight; and the captain of the vessel testifies that, authorized by the appellant, he told the appellee that the charge would be $2.00 per cord; and the proof shows that, in consequence of the refusal of the latter to pay this charge, the cargo was carried to McCullough’s wharf, where it was subsequently taken by the sheriff under the writ of replevin. As a defence to this action of replevin the appellant contended that he had a lien on the cargo for freight, and could therefore hold possession until the charges for freight were paid. His right to hold possession under an existing lien cannot be controverted, but the very existence of this lien is the vital question in the case. It is apparent that unless he had placed himself in a position to make a demand for freight there could be no lien for money due for freight.

It has been decided in a number of cases that no freight is earned unless the contract to safely deliver the cargo has been complied with, and that the master of the vessel is the agent of its owner authorized to enter into such contract. Ferguson vs. Cappeau, 6 H. & J., 399 ; Wirgman’s Adm’r vs. Mactier, 1 G. & J., 150 . By the terms of the contract, signed by the master of the vessel, the cargo was to be delivered in good order at the wharf of the appellee. The mere arrival of the vessel at the wharf was not a full compliance with the obligations of the contract.

Even while the vessel lay at the wharf unloaded the cargo was subject to the exercise of the vendor’s right of stoppage in transitu. James vs. Griffin, 2 Mee. & W., 624; Tucker vs. Humphrey, 4 Bing., 516. Not until the goods had been delivered at the wharf, was there a termination of the voyage by a compliance with the terms of the contract as expressed in the bill of lading. ²⁷⁵ This question was carefully considered and