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13 Cal. 369

Ord v. Steamer Uncle Sam

California Supreme Court

Decided July 1, 1859

California Supreme Court · decided 1859-07-01

<p>Appeal from the Seventh District.</p> <p>Action against the defendant for breach of contract alleged to have been entered into on the part of defendant, by her agents and owners, to transport the plaintiff and his family, consisting of his mother-in-law and two children, to New York via Nicaragua, averring a deviation—transportation to Panama and detention there for seventeen days. Also, that plaintiff suffered greatly through mental anxiety—expended large sums of money in board, lodging, etc. at Panama, and suffered greatly through loss of time; also, averring damage by reason of sickness suffered by his daughter, and expenditure of large sums of money caused thereby.</p> <p>The deviation is charged to have been willful on the part of agents and owners of defendant. Plaintiff demands judgment for ten thousand dollars damages and costs.</p> <p>The complaint is verified, and is answered on the part of the defendant by Charles H. Baldwin, agent to the contract, as follows :</p> <p>“ That as to the contract alleged and sot forth in said complaint, the defendant has no knowledge respecting the same, nor any information respecting the same, and the defendant therefore denies the existence or the making of such contract, and controverts each and every allegation in the complaint in reference thereto.</p> <p>And whether the said plaintiff, or his family, or any or either of them, took passage in the said steamer Uncle Sam, for San Juan del Sur, and were transported to Panama, as stated in said complaint, the defendant has no knowledge or information sufficient to form a belief, and therefore denies the samo,” etc.</p> <p>Plaintiff, having introduced his proof, rested; when, on motion of defendant, a nonsuit was granted, on the ground that the contract was not proved as alleged.</p>

Relies on San Francisco Gas Co. v. City of San Francisco · Humphreys v. McCall · Warner & Wife v. Steamship Uncle Sam

Good law ✅— No negative treatment on recordhow we know

Decided 1859-07-01

How this case has been cited

Cited by 3 later decisions — most recently July 1949

3 state decisions

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Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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This case was argued twice. The first opinion, delivered by Burnett, J.

¶1Terry, C. J. concurring, is as follows :

¶2This suit was brought to recover damages for the non-performance of a contract to transport the plaintiff and his family from San Francisco to Hew York. Upon the trial the plaintiff was nonsuited, from which judgment he appealed.

¶31. It is insisted by the counsel of defendant that there was a fatal variance between the contract alleged and that which was proved. But upon looking into the answer, there is no proper denial of the contract as alleged in the complaint. (Humphreys v. McCall, 9 Cal. 59; Curtis v. Vantine & Richards, Id. 33.)

¶42. The second ground relied upon to sustain the judgment of nonsuit is that the contract declared on being for the entire transportation to Hew York, there was no lion on the Uncle Sam for the breach of it, and no suit could, therefore, be sustained against the vessel.

¶5The code provides that “ all steamers, vessels, and boats, shall be liable for non-performance or mal-performance of any contract for the transportation of persons or property, made by their respective owners, masters, agents, or consignees.” (Sec. 317.)

¶6It will be seen that under this provision the contract for transportation must be made with the “ owners, masters, agents, or consignees,” of the vessel. It is perfectly comj>etent for the persons mentioned to make a contract for the transportation of persons or property from any one port to another; and the contract, when made, is an entirety, and must be enforced as such. The language of the clause is general, and not restricted to the single case where the entire voyage is to be performed by one vessel. If wo give the clause the construction contended; for, the logical result must be that no suit could be maintained *372against the vessel, unless, by the terms of the contract, that vessel was to make the entire voyage.

¶7In this case the contract was entire, and a failure at any point was a violation of the contract, for which the vessel was liable. The contract itself was made with the agents of the owners, and they liad as much right to bind the vessel for the entire contract as for a part.

¶8In case the defendant was only liable for the nial-performance ivhich might occur between the ports of San Francisco and San Juan del Sur, and the vessel on the Atlantic side only liable for a violation on that part of the route, who would bo liable for a violation of the contract on the Isthmus ? And if the contract had been violated on all these different portions of the entire route, then three different suits would have been necessary upon the same contract. In that case, the owners of the vessel might well complain that an entire cause of action had been split up into three different parts, to their injury.

¶93. The question of jurisdiction was decided by this Court in the case of Warner v. The Uncle Sam, (9 Cal. 697.)

¶10Judgment reversed, and cause remanded for further proceedings.

 The second opinion was delivered by Terry, C. J.

¶11Field, J. concurring.

¶12This was an action for the breach of a passenger contract.

¶13The Court below nonsuited the plaintiff, on the ground that the contract was not proven as set out in the complaint.

¶14This was an error j the specific allegation of the contract in the complaint was not sufficiently controverted by the answer, and no evidence on this point was necessary under the rule announced by this Court in the San Francisco Gas Co. v. City of San Francisco, (9 Cal. 453.) The defendants can amend their answer so as to require further proof than was necessary under the answer as it now stands. Judgment reversed, and cause remanded.

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