A contract of common carriage is dependent upon the delivery of the goods at the designated place. If the delivery is prevented, the carrier cannot recover pro tanto for freight for part of the route over which the goods were taken.
Plaintiff entered into a contract with defendant to drive logs to a variety of locations. Plaintiff successfully delivered only some of the lumber he agreed to drive because a flood carried away some of the lumber. Plaintiff sought payment for the lumber that was successfully delivered. Judgment was entered in favor of defendant by lower court because it determined that the contract for the deliveries was a single contract which plaintiff breached by failing to deliver all of the lumber. Plaintiff appealed. The supreme court determined that the contract was severable and that plaintiff was due payment for the logs he successfully delivered.
Is the contract upon which the plaintiff sued considered severable?
Applying the test of an apportionable or apportioned consideration to the contract in question, it will be seen at once that it is severable. The work undertaken to be done by the plaintiff consisted of several items, first of driving logs and second of various other kinds of timber, from points upon Stony creek and its tributaries above Johnstown to the defendant's boom at Johnstown, and also driving cross-ties from some undesignated point or points, presumably understood by the parties, to Bethel in Somerset county, and to some other point or points below Bethel. For this work the consideration to be paid was not an entire sum, but was apportioned among the several items at the rate of one dollar per thousand feet for the oak logs; seventy-five cents per thousand feet for all other logs; three cents each for cross-ties driven to Bethel, and five cents each for cross-ties driven to points below Bethel. But while the contract is severable, and the plaintiff is entitled to compensation at the stipulated rate for all logs and ties delivered at the specified points, there is neither reason nor authority for the claim for compensation in respect to logs that were swept by the flood to and through the defendant's boom, whether they had been driven part of the way by the plaintiff or remained untouched by him at the coming of the flood.