LINDSAY & Co., ship-brokers, of London, filed their petition in the Circuit Court for the Eastern District of Louisiana, in which–alleging a written contract between themselves and the New Orleans, &c., Railroad Company, the company bound itself to pay them 'freights,' at the rate of 25s. per ton, 'in consideration of freightage to be furnished to Algiers, opposite New Orleans, for certain iron rails,' &c.–they averred that, in pursuance of the aforesaid contract, they did furnish freightage for several thousand tons of such rails, from Wales to Louisiana, and that the balance of the freight upon the rails due them was $18,000, &c. The defendants denied that the contract had been performed; claimed damages by way of 're-convention,' and 'pleaded the prescription of one year and three years;' that is to say, set up, in argument, the bar of limitation of one year, under article 3499 of the Civil Code, which prescribes, that actions 'for the payment of the freight of ships and other vessels are prescribed by one year;' and the limitation of three years, to which an act of the Louisiana legislature limits actions upon open accounts. The court found, on a submission of the case to them, in accordance with the Louisiana practice, that a large portion of the rails had not been delivered within the time stipulated for; and that of these a portion had been sent, not to Algiers but to New Orleans, for the cost of removing which to New Orleans the plaintiffs were entitled to re-coup; that the time within which the freightage was to be furnished had been extended and limited by a subsequent agreement to a date fixed; that the railroad company refused to receive any rails delivered after that date; that the manufacturers resumed possession of these; that the company had not proved any special damage as resulting from the delay mentioned, and that this delay had been owing to the acts of Lindsay & Co., who had found, during the Crimean war, a more profitable employment for the ships. The court declared that the contract was not a contract for the payment of the freight of ships and other vessels, within article 3499 of the Civil Code set up; and overruling also the prescription of three years given by statute for open accounts, gave judgment in favor of the plaintiff below 'for the whole amount of freightage, at the rates specified in the contract,' allowing certain credits and the cost of transferring to Algiers those rails which had been improperly landed at New Orleans. The case came here on error, two errors being assigned. 1. That the court allowed the plaintiffs, Lindsay & Co., to recover on an express agreement, when it was found that they had never performed it. 2. That they had overruled the plea of prescription.
The opinion of the court was delivered by: Mr. Justice Swayne delivered the opinion of the court.
Messrs. Carlisle and McPherson, for the plaintiff in error:
I. As to the special contract. It is a settled principle of law that a party cannot recover upon a contract without proving performance of all conditions precedent, and their performance within the limited time, when a time is limited.*fn1
It is true, the court found that the defendants had not proved 'any special damage' by the delay; but under this issue they were not bound to prove any damage, special or other. To require it was to shift the burden of proof, and relieve the plaintiffs from the exigencies of their own case.
We agree that in the civil, as well as at common law, a recovery may be had, although there be a failure to prove performance of the special contract, if the defendant have derived any benefit in the premises. But such recovery can only be ex equo ex bono, and undeniably must be founded on some proof tending to show some service performed and accepted, other than that stipulated in the contract, and what the plaintiff reasonably deserved to have from the defendant therefor. The objection here is, that all such proof is absolutely wanting. The court does not find that the defendant below derived any benefit from the services of the plaintiff, or what was the value of the service rendered, or that it was of any value.
II. As to the statute of limitations, or prescription of one year. The court proceeded, doubtless, on the ground that the special contract was in the nature of a brokerage contract, the plaintiffs below being middle-men between the defendant and the shipowners. But we have seen that the plaintiffs wholly failed to make any case upon the special contract; and if they could recover at all, must do so upon the implied contract arising out of the service performed by them, to wit: the transportation of the goods. In other words, it was an implied contract for the freight of ships merely, which arose directly between the parties to the suit, to the exclusion of all third persons, and, consequently, was within the letter as well as the spirit of the article of the Civil Code above cited.
I. As to the basis of the recovery.
The objection is really an allegation of variance. But it is far too technical to prevail. No objection of this sort was made below. It must be considered as waived.
II. The plea of the prescription.
As to the one year, this case is different from that of a ship-owner or captain contracting for the freight of goods shipped by his vessel. The plaintiffs are ship-brokers; they bound themselves to provide vessels to transport a large quantity of iron from Wales to New Orleans, an obligation which the iron-masters probably were not able or willing to assume. It might not have been possible for the iron-masters or the agents of the defendants to find a sufficient number of vessels for this purpose. It may only have been possible for large ship-brokers to influence such a number of vessels to undertake this business. So, no doubt, the defendants thought when they made the contract of 1853. It was, in short, a legitimate commercial undertaking on the part of plaintiffs, who thought that, owing to their position, they could undertake such a duty with advantage, and were willing to run the risk of it.
This is different from the case of a captain of a vessel who agrees to take freight for one trip at a fixed price. A contract for a fixed freight, such as is contemplated by article 3499 of the Civil Code of Louisiana, is evidenced by a bill of lading, and not by an agreement extending over years and involving the employment of many vessels, like that upon which this suit was brought. It is therefore clear that that article is not applicable to the present case.
And it is equally clear that the act of the legislature of Louisiana, which limits actions upon open accounts to three years, is not applicable to this case.*fn2
The account was not an open account, but an admitted account, which it was attempted to extinguish by a counter-claim.
In the case of the New Orleans Railroad Company v. Estlin,*fn3
the defendant was sued for the unpaid balance of his subscription to the stock, and pleaded the prescription of three years, contending that he was sued upon an open account. The court said: 'The defendant was not sued upon an open account. The demand is based upon an express and written contract.' In Cooper v. Harrison,*fn4
an agent was sued for the price of land sold by him for his principal during a number of years. The prescription of three years of actions upon open accounts having been pleaded under the statute of 1852, the court said: 'We are of opinion that the accounts due by an agent for the selling of lands cannot be considered as embraced in the sense of the statute in ...