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.
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.
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.