for both parties, the solution of the question as to whether the defendant is liable to the plaintiffs depends at last upon the construction of the contract by which they are bound, and which we think the lower court properly construed. The case is not affected by rul by said steamship to Havre and Hamburg. | exhaustive briefs of the very learned counsel The contract provided that the captain "shall sign bills of lading as and when presented" without prejudice to the contract. In pursuance of that contract, the defendant, the charterer, presented to the captain of said steamship, for his signature, certain bills of lading calling for 36 bales of cotton of speci-ings, almost without number, which we have fied marks set forth in the bills of lading, and consigned to the respective parties named in the petition as amended, also bills of lading for six pieces of wood consigned and described in the bill of lading as set out in the petition as amended, and also for three barrels of rosin as described in the petition as amended. These bills of lading were signed by the master as required by the contract or charter party and it is alleged that they were signed upon a representation of the defendant, upon which representation the captain of said steamship relied, that the cargo specified in them had been loaded on said steamship by the defendant as required by the contract. Upon arrival of the steamship at Havre, the cotton so marked and consigned was found not to have been loaded on it by the defendant at Savannah, and the owners of the ship paid the consignees for the missing cotton. Upon the arrival of the ship at Hamburg, it was found that four pieces of oak thus described and consigned had not been loaded at Savannah by the defendant, and the shipowners paid the consignees their value. Upon the arrival of the ship at Hamburg, it was found that three barrels of rosin thus specified and consigned had not been loaded by the defendant at Savannah, and the consignees of this rosin required the shipowners to pay the value thereof. Certain other cargo was found on board said steamship, put there at Savannah by defendant, bearing no marks, and marks for which there were no consignees. Plaintiffs endeavored to get the consignees of the missing cotton to accept the no-mark and wrongmarked bales of cotton in lieu of the cotton marked as consigned to them, but this the consignees refused to do. Petitioners thereupon sold the no-mark and wrong-marked cotton, and obtained the best price obtainable therefor, and gave credit to defendant for the amount received, less the necessary costs and expenses incident to the transaction. This suit was brought to recover the difference in money claimed to be due in consequence. The court below, on demurrer, held that neither the original petition nor the petition as amended presented a cause of action, and dismissed the suit. Anderson, Cann & Cann, of Savannah, for plaintiff in error. Adams & Adams, of Savannah, for defendant in error. RUSSELL, J. (after stating the facts as above). Stripped of the many collateral examined, where the charter party differed from the one involved in this case. A charter party, after all, is nothing more than a contract of affreightment, and though the contract be unusual, or even unnaturally favorable to one of the contracting parties rather than to the other, this affords no reason why the contract as written should not be enforced. Briefly stated, and putting the case most favorably for the plaintiffs, they seek to recover money which they paid in Europe to consignees for a portion of the cargo which they were unable to deliver, because, upon the ship's arrival, that portion of the cargo could not be found in the ship. The defendant contends that it is not liable, and that the plaintiffs have no right of action over against it because the plaintiffs were not compelled to pay the consignees, and also because, if they were liable to the consignees in Europe, this liability was due to some other cause than a breach of the defendant's contract as embodied in the charter party; in other words, that, even if the plaintiffs were liable to pay the consignees, it was not due to any fault of the defendant. The merit of these respective contentions is to be determined by the nature of the agreement between the parties and the relations they sustained to each other. It does not matter that under the provisions of a "time charter" such as is dealt with in the Santona Case (C. C.) 152 Fed. 516, or in Golcar Steamship Co. v. Tweedy (D. C.) 146 Fed. 563, or in the case of the S. S. Hackney (which is appended as a note to the Santona Case), it was held that the captain was the servant of the charterer. These were cases in which the contract was treated as a demise of the ship, and, as Judge Hough says in the Santona Case: "The rule of law separating the letting of a ship from a contract for her services has been too often laid down to admit of doubt." Nor does it matter that courts of highest authority (as in Elder, Dempster & Co. v. Dunn & Co., decided by the House of Lords) have held that under a particular contract therein involved the carrier could recover from the charterer the damages he had to pay for short delivery. We are only concerned with the contract entered into between the plaintiffs and the defendant. As we construe that contract, the charterers were to furnish the cargo alongside the ship and pay for loading it on board the ship, and McIntyre Bros. & Co. were to transport it to destination and deliver it to petition that a certain portion of the cargo, | does not show that the failure of the charthe value of which the plaintiffs paid the consignees, and which it was the defendant's duty to place alongside the ship, was not placed alongside the ship, and that, in consequence of its not being aboard when the ship reached its destination, the plaintiffs had to pay the consignees for it. If nothing more was stated, this would seem to give the plaintiffs a clear right of action, but it appears from the petition that the only reason why the plaintiffs had to pay the consignees for the shortage in the cargo was that the consignees had bills of lading which included the missing cotton, lumber, and rosin. And this raises the inquiry as to the plaintiffs' original liability to the consignees upon their bills of lading. terers to place alongside or load all of the cargo imposed liability upon the charterers. The plaintiffs rely upon the proposition that McIntyre Bros. & Co. were liable to the consignees because they could not dispute the statement of the bills of lading in the hands of the consignees that they had received the shipment, including the portion which they (the owners of the vessel) were unable to deliver. There is no stipulation that the bills of lading are to be binding upon master and owners as proof of quantity delivered to the ship (as there was in the Tongoy Case [D. C.] 55 Fed. 329); and so we need not consider whether the plaintiffs would have been estopped to deny the ac knowledgments of their bills of lading, if the present contract had contained such a stipulation. The question turns upon whether the master had the authority to sign bills of lading for a shipment which he had not in fact received. The plaintiffs' petition states that the missing articles were not loaded. Therefore, of course, if the master acknowledged the receipt of these articles, the statement that he had received them was untrue. The plaintiffs attempt to meet this point by an allegation that the charterers procured the signature of the master to the bills of lading by false representations. This might give the plaintiffs a right of action for deceit, if by such false representations the plaintiffs had finally been compelled to pay the consignees. The fact that the bills of lading were induced by misrepresentation, however, would not necessarily have made the plaintiffs liable to pay the consignees for the shortage in the cargo. At the time that the plaintiffs paid the claim of the consignees, they were not estopped from asserting that the master had no authority to sign in their behalf bills of lading for a shipment, which, in fact, had never been re [1] Could the plaintiffs have refused to pay the consignees for the portion of the cargo they failed to deliver? And, if not, would they have a right over against the defendant to recover the amount that they were compelled to pay? We think the first question must be answered in the affirmative, and the second in the negative. It is not necessary to determine the question of the plaintiffs' liability if the bills of lading had been assigned and had passed into the hands of innocent purchasers without notice, because there is no allegation that they were assigned, and consequently such rulings as that in Van Santen v. S. O. Co., 81 N. Y. 171, are not in point. Construing the petition most strongly against the pleader, it must be assumed that the bills of lading had not been assigned, but were presented by the original consignees. Still, even if the plaintiffs were liable upon their bills of lading, the defendant, whose duty in reference to the cargo was to place it alongside the ship, would not be liable upon the bills of lading, because they were issued by the captain, who must be held to be the agent of the plaintiffs themselves, and no responsibility would attach to the defendant for an act 103, Judge Hoar, delivering the opinion of [2] In Sears v. Wingate, 3 Allen (Mass.) of the captain as, an agent of the plaintiffs. the court, held it to be a general principle, This contract expressly limits the liability of the defendant to the period of time neces- cites), "it is not within the scope of the amply supported by authority (which he sary to put the cargo on board. It contains master's authority from the owners to sign the stipulation that: "Owners are to be re- bills of lading for any property but such as sponsible for all cargo after it is delivered is put on board." Counsel for the plaintiffs alongside, and signed for by mate or other concede the general principle, but insist that person authorized to receive same." And in the present case, under the provision of paragraph 11 of the charter party provides the contract that "the captain shall sign that: "All liability whatever of the charter- bills of lading as and when presented on ers hereunder is to cease when the cargo is press receipts or railroad guarantees, as cusshipped, the owners, master, or his agents tomary," the captain not only had the auhaving an absolute lien on it for freight, thority to sign the bills of lading, but it dead freight and demurrage." These provi- was his duty to do so without question. sions may seem unreasonable, but they speak This view is supported with marked ability the agreement of the parties. Consequently in the learned and ingenious argument of it does not appear that the portion of the counsel, and many authorities are cited. cargo which was missing, even if not loaded We think, however, counsel loses sight of by the stevedores, was not stolen or mis- the fact that the provision in reference to placed after it was placed alongside the ship the captain signing the bills of lading "as ceived by them. ulation that they must be signed "without ship, except the fact that the charterers prejudice to this charter party," and also loaded the ship in great haste in order to that the entire authority of the captain in signing the bills of lading is restricted to the matter of freight rates. Since the charterers were responsible only for the cargo in placing it alongside the ship and in loading what there might be to load, and their responsibility ceased (under the eleventh paragraph) when the cargo was shipped (or loaded), authority of the captain to acknowledge receipt of cargo, which in fact he did not receive, cannot be implied from the contract. And it has been expressly held that the terms in a charter party authorizing the captain to sign bills of lading "as and when presented, without prejudice to the charter party," "but any difference between the amount of freight as per bills of lading and this charter party to be settled at port of loading," etc., were not inconsistent with the general rule that an agent cannot give bills of lading for shipments not received, but confined the authority of the captain, in relation to the bills of lading, to the mere matter of freight charg es. 36 Cyc. 65, 66; The Tongoy (D. C.) 55 Fed. 330; The Kirkhill, 99 Fed. 576, 39 C. C. A. 658. The declaration in the case at bar is based upon the alleged violation of the charter party: "Petitioners attach hereto an itemized statement marked Exhibit B., which is made a part hereof, showing that said defendant is indebted to them in the sum of £196, 9s, 11d., for which amount in terms of money of the United States of America, to wit, the sum of $951.11, petitioners, who are the owners of said ship Reliance, and who have paid out the sums heretofore set forth, because of defendant's breaches of contract as aforesaid, ask judgment." But in the allegations there is nothing to show that the charter party was violated in any respect, nor is there any reference to a particular part of it which has been violated. The case proceeds upon the theory that the master signed, the bills of lading upon the defendant's representation that the cargo described in the bills of lading had been loaded, when, as a matter of fact, it had not been loaded, but there is no allegation of any fraud on the part of the defendant. It is not stated that the defendant knew at the time the bills of lading were presented for signature that the missing cotton and other articles had not been loaded, nor is it alleged that there was any fraudulent collusion between the defendant and the master with intent to defraud the plaintiffs. It is to be noted, too, that, while the charterers were to pay the stevedores for loading the cargo, the loading was to be under the captain's direction. He was to say in what portion of the ship the various articles of freight were to be stowed, and there is no reason given why he could not, or did not, check the make the despatch money. This statement itself would contradict the idea that the defendant was intending to defraud the plaintiffs, and raise the inference that, if the defendant omitted to place alongside or load any portion of the cargo, it was due to haste and negligence rather than to design. [3] Counsel for the plaintiffs strenuously insist that the ruling in Elder-Dempster & Co. v. Dunn & Co., Law Times, Dec. 18, 1909, 11 Asp. Mar. Cas. (N. S.) 337, is conclusive upon the point that McIntyre Bros. & Co. could not dispute the statements of the bills of lading, and therefore were liable to the consignees. As we have previously said, we see no reason why McIntyre Brothers & Co. could be held to be estopped from denying the authority of the captain to sign the bills of lading for cargo not received, but even if they could not, and if the liability for payment of the consignees properly rested upon the South Atlantic Steamship Co., McIntyre Bros. & Co. would not have a right to recover for the payment made by them in behalf of the South Atlantic Steamship Company, unless they had been requested by the steamship company to pay its debt. The fact that I, without Smith's request, pay Smith's debt, does not authorize me to recover from Smith the amount which I paid in behalf of Smith without his procurement or knowledge. Smith may justly owe the debt, non constat that he is ready and willing to pay it. It may be it would have been tedious and expensive to the plaintiffs to have resisted a libel if the consignees had proceeded against the ship; but if the plaintiffs were not liable, and these expenses had been caused by the defendant, they could have recovered from the defendant the damages which their breach of the contract had occasioned. It appears that the provisions of the charter party in the Elder-Dempster Case are so dissimilar to the charter here involved that the ruling is not in point. The remarks of Scrutton, K. C., show that the charter in the Elder-Dempster Case was what is called the "net form" under which the charterer and his servants put the goods right on board, whereas in the charter before us the shipper gave the goods to the ship "alongside," the owners were responsible for them while they remained there, and, though the charterers furnished the stevedores and paid for the loading, the loading was done under the supervision of the captain. We think that when the parties inserted in the present contract the stipulation that the owners were to be responsible for the cargo after it was delivered alongside, and signed for by the mate or other person authorized to receive it, the shipowners either clearly overlooked the fact that a part of the cargo might be stolen, burned, or re loaded, or else they clearly intended to as sume the risk in case of either of these contingencies, and, in the absence of any evidence that the charter in the Elder-Dempster Case contained a similar stipulation, we would not be authorized to treat the ruling in that case as controlling authority. The liability of the defendant, if any, depends upon the authority of the captain to issue bills of lading for a cargo which he did not receive. It must be conceded that he has generally no such authority, and there is nothing stated in the petition which would have given the consignee the right to assume that he did have such authority. Consequently the consignees took the bills of lading with knowledge of the fact that the captain had no such authority, and they could not have held McIntyre Bros. & Co. liable for the portion of the cargo which was missing without first proving that McIntyre Bros. & Co., did, in fact, receive the entire cargo. As McIntyre Bros. & Co. would not have been responsible in the first instance, they were not authorized to pay the consignees' claim against the South Atlantic Steamship Company, and, having paid it without direction or request on the part of the South Atlantic Steamship Company, they cannot recover. It may be that the bills of lading themselves would show that the South Atlantic Steamship Company was liable. But we cannot assume this. We would have preferred that the bills of lading had been in the record. Counsel for the defendant demurred upon the ground that they should be set forth, but does not except to the judgment overruling this demurrer, and, so far as this case is concerned, it must be held that the court ruled correctly in overruling the demurrer. We incline to the opinion that the ruling was right, and that there was no ground to except; but certainly the plaintiffs cannot complain of the ruling, and from their failure to amend by setting out the bills of lading (although they were not required to do so) it may be presumed that there is nothing in the bills of lading which would disclose anything to their benefit or take the case out of the general rule. It may be that the bills of lading did not disclose that the 36 bales of cotton were actually included therein, and the same may be said as to the rosin and lumber. From this it may be inferred that business considerations may have influenced McIntyre Bros. & Co. to accede to a claim which in fact was not justified by the bills of lading. The description of the marks of some portion of the cotton may have been illegible on the bills of lading, and the plaintiffs may have conceded the claim of the consignees too readily, simply to avoid litigation. Be this as it may, since the plaintiffs elected to base their action upon the charter party, their case must stand or fall upon its provisions. ment, which the plaintiffs proposed to make the seventh count of their petition, but which the trial judge refused to allow as an amendment, that the defendant failed to place the portion of the cargo for which the plaintiffs had to pay alongside the ship, as it was bound to do by the provisions of the charter party, has been the subject of our most serious consideration, and the question presented has not been determined without great difficulty. We were at first of the opinion that this raised such an issue of fact as to a very apparent breach of one of the conditions of the contract that it should have been submitted to the jury, and that the trial judge erred in sustaining the objection to the amendment and in refusing to allow it. However, after an exhaustive examination of the authorities, we are compelled to the conclusion that this breach of the contract cannot afford a basis for the plaintiff's recovery of the sum of money which they allege they paid to the consignees upon their bills of lading, procured, as the plaintiffs allege, by false representations of the defendant to the captain that the goods had been placed alongside the ship. Even though the plaintiffs might be entitled to recover in a direct action brought upon the breach of the contract in this particular, and without regard to the bills of lading or the representations by which their issuance was induced, if the rule is as we think it is, and as stated by Justice Hoar in the case of Sears v. Wingate, supra, that the master never has authority to acknowledge receipt of goods which he does not actually receive, and if it is further true, as held in Swift v. Tatner, 89 Ga. 660, 15 S. E. 842, 32 Am. St. Rep. 101, that the master, under this charter party, was the servant of the owner rather than the charterer, then the shortage in the cargo was the fault of the plaintiffs' own agent, and, of course, the plaintiffs could not recover from the defendant for a loss which had been occasioned the plaintiffs by the negligence of their own agent in not ascertaining that the goods specified in his bills of lading had not in fact been delivered alongside. If, as a matter of fact, the goods were not delivered alongside by the defendant charterer, the plaintiffs may maintain an action for this breach of the contract, and the measure of their damages would not only include the market value at Savannah of such articles as were not put alongside, but might also include all other costs and damages to which the plaintiffs were subjected by reason of the defendant's breach of the contract evidenced by the charter party. But this right of action would be one entirely different and distinct from the plaintiffs' original cause of action, which depends upon the procurement of bills of lading from the plaintiffs' captain by false representation to the effect that defendant had placed alongside ship articles which had Of course, if, as a matter of law, the captain was the agent of the charterers, instead of the agent of the owners of the ship, the plaintiffs would not have been compelled to pay the consignees for the shortage in the cargo. We think, therefore, that under the allegations of the petition, as well as of the amendments proposed thereto, the plaintiffs could not recover of the defendant in this action. Even if it is not clear that the plaintiffs could have avoided paying the consignees in Europe, it is perfectly plain, in the absence of any allegation of fraud or collusion between the captain and the defendant charterers, that the failure of the captain (the plaintiffs' agent) to ascertain for himself, and for the protection of his masters, that the articles receipted for in the bills of lading had been actually delivered by the charterers, was the real cause of the shortage for which the plaintiffs had to pay, and that the plaintiffs cannot recover of the defendant for the negligence of their own agent. Judgment affirmed. (12 Ga. App. 722) BROWN v. STATE. (No. 4,761.) (Court of Appeals of Georgia. May 20, 1913.) (Syllabus by the Court.) 1. INFANTS (§ 66*)-CRIMINAL LAW (§ 778*)— COMPETENCY TO COMMIT CRIME-BURDEN OF PROOF-INSTRUCTIONS. Under the statute of this state, a person between the ages of 10 and 14 years cannot be legally convicted of a crime, unless it appears from the evidence that he was capax doli; and the burden of proving that he was so rests upon the state. Penal Code 1910, § 33; Ford v. State, 100 Ga. 63, 25 S. E. 845. The court should have charged the jury to this effect, in accordance with a written request, timely made. An instruction to the effect that, in determining the question as to the mental responsibility of the accused for his conduct, the jury should consider any evidence showing what he did, how he acted, what he said, in fact the whole case in all of its aspects, to determine whether he knew good from evil, and that if the jury had a reasonable doubt on this question they should acquit, was not equivalent to the instruction requested. [Ed. Note.-For other cases, see Infants, Cent. Dig. § 172; Dec. Dig. § 66; Criminal Law, Cent. Dig. §§ 1846-1852, 1854-1857, 1960, 1967; Dec. Dig. § 778.*] 2. HOMICIDE (§ 300*)-INSTRUCTIONS-JUSTI FICATION. Since the decision of the Supreme Court in the case of Cumming v. State, 99 Ga. 662, 27 S. E. 177, it has been uniformly held by that court and by this court that a charge to the jury that "provocation by words, threats, menaces, or contemptuous gestures shall in no case be sufficient to free the person killing from the guilt and crime of murder" (Penal Code 1910, § 65) should not be given without qualification, where there is a theory of the evidence, or of the statement of the accused made to the jury, on which the jury might find that the person killing acted in self-defense, on account of a reasonable fear aroused in his mind by menaces, etc., considered in connection with the other facts in the case. In the present case the theory of the defense, based upon the statement of the accused, was to the did so under the fears of a reasonable man that effect that the accused, in killing the decedent, the decedent was endeavoring to take his life or to commit a felony on his person; these reasonable fears being aroused by menaces, accompanied by the act of drawing a knife on the accused by the decedent. [Ed. Note. For other cases, see Homicide, Cent. Dig. 88 614, 616-620, 622-630; Dec. Dig. $ 300.*] (Syllabus by the Court.) 1. TRIAL (8 257*)-INSTRUCTIONS-REQUESTNECESSITY. In the absence of an appropriate and timely request to that effect, the trial judge (after having fully and fairly stated the contentions of the parties as set out in the pleadings) is not required to direct the attention of the jury to specific contentions of either party, arising, for the first time, upon the argument of the case and not specifically mentioned in the pleadings; the contention being wholly dependent upon inferences from the testimony. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 642-645; Dec. Dig. § 257.*] 2. TRIAL (§ 141*)-INSTRUCTIONS-CONCEDED LIABILITY. Counsel for the defendant, in open court, admitting its liability to the plaintiff for such damages as were due to a slight wound in the plaintiff's head, but at the same time denying the existence of all other injuries from which the plaintiff claimed to have suffered, it was not error for the judge, in reply to this statement of counsel, and in proceeding with his charge, to use the following language: "Counsel having conceded the liability of the defendant, you should carefully consider the case and arrive at the proper amount after giving due weight to all of the testimony in the case, and the form of your verdict should be, 'We, the jury, find for the plaintiff' so many dollars, stating the amount." [Ed. Note.-For other cases, see Trial, Cent. Dig. § 336; Dec. Dig. § 141.*] 3. VERDICT SUSTAINED. The verdict is fully supported by the evidence. Error from City Court of Sandersville; E. W. Jordan, Judge. Action by J. D. Borland against the Central of Georgia Railway Company. Judg |