| Ill. | Jan 15, 1866
delivered the opinion of the Court:
This was an action of assumpsit in the Circuit Court of Adams county, brought by Solomon J. Lesem & Brother, a mercantile firm trading and doing business under that name, against the American Express Company; and such proceedings were had, that a verdict was rendered for the plaintiffs for the sum of three hundred and fifty-six dollars and thirty-four cents. A motion for a new trial was overruled and judgment entered on the verdict, from which the defendants appeal to this court.
The errors assigned are the following: In refusing to permit the defendants toread in evidence the fourth, fifth, sixth, seventh and ninth interrogatories, and the several answers thereto of the witness Summers.
In giving to the jury the instructions numbered one, two, three, six, seven, eight and nine on the part of the plaintiffs.
In overruling the motion for a new trial, on the ground that the verdict was against the weight of evidence, and because the damages were excessive.
In refusing instructions asked by the defendants, and in rendering judgment on the verdict.
To understand the force of this assignment of errors, a brief' statement of the prominent facts is necessary.
- On the 26th of December, 1863, the plaintiffs, Lesem & > Brother, were merchants trading and doing business in the city ¿of Quincy. A mercantile firm had, before that time, been •trading and doing business at Stewartsville, Missouri, under • the name of W. O. T. Davidson & Go., composed of W. 0. T. Davidson and John A. E. Summers. Summers, in October, . 1863, retired from the concern, having been a member about four months, and Davidson continued the business under the old firm name. During the existence of the firm, goods had been sent to it by plaintiffs by rail, at various times, and conveyed by the defendants. The packages containing the -goods were marked O. O. D.
On the 26th of December, 1863, a box of goods of the value of three hundred and fifty-six dollars and thirty-four cents was put in charge of the defendants by the plaintiffs, at Quincy, addressed to W. 0. T. Davidson & Co., Stewartsville, Missouri, for which this receipt was given to plaintiff:
“American Express Company, ) • December 26th, 1863. j
“ Received of S. J. Lesem & Bro., 1 box said to contain D. Gr. and cloths, valued at 356.34, marked W. C.,T. Davidson & Co., Stewartsville, Mo., which we undertake to forward to the nearest point of destination reached by this company, subject expressly to the following conditions, namely : This company is not to be held liabfe for any loss or damage, except as forwarders only, nor for any loss or damage, by fire, by the dangers of navigation, by the act of Grod, or of the enemies of the government, the restraints of governments, mobs, riots, insurrections, pirates, or from or by reason of any of the hazards or dangers incident to a state of war, nor shall this company be liable for any default or negligence of any person, corporation or association, to whom the above described property shall or may be delivered by this company, for the performance of any act or duty in respect thereto, at any place or point off the established routes or lines run by this company, and any such person or corporation or association shall be deemed and taken to be the agent of the person, corporation or association, from whom this company received the property above described; nor shall this company be liable for any loss or damage of any box, package or thing for over $50, unless the just and true value thereof is herein stated; nor upon any property or thing, unless properly packed and secured for transportation; nor upon any fragile fabrics, unless so marked upon the package containing the same; nor upon any fabrics consisting of or contained in glass. The party accepting this receipt hereby agrees to the conditions, herein contained.
“ For the proprietors, J. H. DURFEE, Agent.
“356.34. C. O. D.”
. It appears, Summers, while such partner in the firm of W. C. T. Davidson & Co., was also agent of the defendants at Stewartsville, and so remained until 23d of December, 1863. He was on that day succeeded by Orlando G. McDonald.
The box of goods not being accounted for by the defendants, this action was brought against them for the value of its contents.
The declaration contains four counts. The first count alleges that on the 26th day of December, 1863, the defendant was a common carrier of goods, between Quincy, Ill., and Stewartsville, Mo., that on that day the plaintiffs delivered to the defendant, at Quincy, Ill., one box of goods worth $356.34, to be safely carried by the defendant to said Stewartsville, and then to be delivered by the defendant, for the plaintiffs, to W. C. T. Davidson & Co., upon their paying to the defendant for the plaintiffs, the value of said box of goods, viz.: $356.34; the said sum of $356.84 to be returned, and paid by the defendant to plaintiffs at Quincy; and the said goods not to be delivered to said W. C. T. Davidson & Co. without payment of the said sum of $356.34; that, in consideration thereof, and of a certain reward, the defendant promised the plaintiffs safely to carry said goods from Quincy to Stewartsville, and there safely to deliver the same to W. C. T. Davidson & Co. upon their paying to the defendant, for the plaintiffs, the said sum of $356.34, and not to deliver the same to said W. O. T. Davidson & Co. without payment, and to return and pay over to the plaintiffs the said sum of $356.34: yet the said defendant, though a reasonable time has elapsed, and although specially requésted so to do, has not returned or paid over to the plaintiffs the- said sum of $356.34, nor any part thereof, whereby the value of the goods-has been wholly lost to the plaintiffs.
The second count alleges that on the 26th day of December, 1863, the defendant was a common carrier of goods and collector of moneys; that the plaintiffs before that had bargained and sold to W. C. T. Davidson & Co., a mercantile firm doing business at Stewartsville, certain goods of the value of $356.34, to be transported by the plaintiffs from said Quincy, through the defendant, as such common carrier, to said Stewartsville, and there to be delivered by the defendant to the said W. C. T. Davidson & Co., only upon payment by them of the said sum of mouey to the defendant, to be by the defendant thence carried to said Quincy, and then delivered and paid over to the plaintiffs, and upon the readiness of the defendant, at said Stewartsville, the goods so to deliver, in case of the non-payment of the price aforesaid, the same goods to be returned by the defendant to the plaintiffs at said Quincy; that the plaintiffs on the day and year aforesaid delivered the said goods, to wit: one box of dry goods of the value of $356.34, to the defendant at Quincy, to be carried to Stewartsville, and there delivered to W. 0. T. Davidson & Co., on payment of the price, and in case of non-payment, the goods to be returned to the plaintiffs at Quincy; that the defendant received the goods, and in consideration of the premises, promised to carry them safely to Stewartsville, and to deliver them to W. C. T; Davidson & Co., only upon payment of the price, and to collect and deliver to the plaintiffs, at Quincy, the price thereof; and in case W. C. T. Davidson & Co. failed to pay for the goods, when ready to be delivered, then safely to return and redeliver the goods to the plaintiffs at Quincy; that although reasonable time for that purpose has elapsed, the defendant has not paid over the price of the goods, nor returned the goods to the plaintiffs, though specially requested so to do, whereby the goods and the price thereof have been wholly lost to the plaintiffs.
The third count alleges that the defendant was a common carrier and collector, etc.; that on that day the plaintiffs delivered to the defendant one box of goods of the value of $356.34, to be carried from Quincy to Stewartsville, and there to be delivered to W. C. T. Davidson & Co. only upon payment of the price, and the money to be returned by the defendant to Quincy, and there paid over to the plaintiffs, but if W. C. T. Davidson & Co. failed to*'pay for the goods on delivery, then defendant to return said goods to the plaintiffs, at Quincy; that the defendant then made and delivered to the plaintiffs its receipt and agreement in writing, as follows: (as above set forth); and then avers, that the line of said defendant, as a common carrier, extended from Quincy to Stewartsville; that the letters “ C. O. D.” in the receipt mean that the defendant promised the plaintiffs to deliver the goods to W. C. T. Davidson & Co., only on payment of the price, and to deliver the price, when paid, to the plaintiffs at Quincy; and in case of non-payment of the price, to return the goods to the plaintiffs at Quincy; that although a reasonable time had elapsed, the defendant,' though specially requested, had not delivered to the plaintiffs either the money or the goods or any part thereof.
The fourth count was for goods sold and delivered, money had and received, and money due on an account stated.
The plaintiffs read in evidence, without objection, the above receipt. The defendants admitted that the signature of Durfee was the genuine signature of the authorized agent of the company ; and he, being examined for the plaintiffs, testified that he was the agent of the company at Quincy, at the date of the receipt, and had been ever since. He stated that the letters C. 0. D. meant that the express company was to collect on delivery the amount due from the consignee and marked on the package, and return that amount to the consignors. He further stated, that plaintiffs had made inquiries about this package at the express office, and had called there for the money mentioned in the receipt, but he could not recollect when they called. They wanted the money. The box was not returned. The defendants then admitted Durfee’s agency, and that they were common carriers as alleged.
E. M. Wood testified, that he was a clerk and traveling agent' of the plaintiffs in their wholesale department, from ¡November, 1862, to June, 1864; that he traveled in Missouri for the plaintiffs; that he selected the goods for the box in controversy, but did not pack them; the goods were worth $356.34, and the box was so marked. In the winter of 1863-4,-he traveled in Missouri for the plaintiffs, in general charge of 'their business in that State, in making sales and collections; that plaintiffs, before bringing suit, had called on the express company for the money to be collected on the box, but could get neither the money nor the goods.
This was all the evidence in chief, for the plaintiff.
Mow, to understand the first error assigned, the defendants introduced the deposition of Summers, who had been the former partner of Davidson, and express agent, as above stated, in' which deposition was an interrogatory numbered four, and the answer thereto, as follows :
“ Did or did not the said firm, while you were a member of it, buy goods of the plaintiffs in this suit ? If yea, how often ? and by what mode of conveyance were such goods received ? How were the packages of boxes containing the same marked as to collection ? On' what terms, as to delivery and credit, were the same bought of the plaintiffs ? And what was the course of dealing between your said firm and said plaintiffs, in respect to the delivery of the same, and collection of the proceeds thereof? and when did said course of dealing commence ? and how long did it continue ? ”
“ The firm of W. 0. T. Davidson & Co., when I was a member of it, did buy goods of the plaintiffs in this suit, some three or four times. The goods were conveyed to us by the American Express Company. The packages containing the goods were' marked ‘ C. O. D.’ We bought on thirty days’ credit, and the goods were paid for in three installments, of ten days each, by remittances through the American Express Company to S. J. Lesem & JBro. The goods were delivered to us on receipt to the American Express Company and paid for as stated, i. e., in installments through express company to Lesem & Brother. This course of dealing between Lesem & Brother and us commenced in June, 1863, and continued about four months, or as long as I was a member of the firm of W. C. T. Davidson & Co.”
The plaintiffs objected to this interrogatory and answer on the ground of irrelevancy, and as seeking to vary by parol the written contract, and to prove a custom variant from the contract, and to establish a course of dealing between the plaintiffs and other parties prior to the contract with the defendants.
The fifth interrogatory and answer thereto were as follows:
“ What objection, if any, did Lesem and Brother make to the delivery of C. O. D. goods without payment, in the manner you have stated % ” “ They made no objection whatever.”
The sixth interrogatory and answer were as follows:
“ Will you please state whether you, as agent of said company as aforesaid, did or did not deliver goods marked ‘ C. O. D.,’ sent by said plaintiffs, through said express, directed to said W. C. T. Davidson & Co., at said Stewartsville, without collection % If yea, when and how often did you do so, and by whose authority or permission, if any, did you do so ?”
“ I did deliver goods marked ‘ O. O. D.’ to W. C. T. Davidson & Co., without collection, some three or four times, by permission of S. J. Lesem & Co., and also by permission of E. M. Wood, their agent.”
The objections to this interrogatory and answer were, in addition to those made to interrogatory four, that Wood’s attention when examined as a witness, was not called to any such conversation with him.
The seventh interrogatory and answer were as follows:
“ What agreement or understanding, if aiiy, was there between your firm and Lesem and Brother, as to the delivery of C. 0. D. goods, and how long did said agreement continue in force % ” “ The agreement was for us to receive and sell the goods, and remit payment in three installments of ten days each, per American Express Company, as stated before.”
Interrogatory nine, and answers thereto, were as follows:
“ State whether or not, after yon went out of said firm of W. C. T. Davidson & Co., you had a conversation with said Wood, in which anything was said about said firm of S. J. Lesem & Co. selling goods to said W. C. T. Davidson ? If yea, state when and where said conversation was had; and what, if any thing, was said by said Wood in said conversation as to the terms on which said S. J. Lesem & Bro. were then selling goods to said Davidson ? ”
“ I had a conversation with Mr. Wood on the cars, some time in February, 1864, and he stated that Davidson had a large lot of goods bought of Lesem & Bro. on the way then to Stewartsville, Mo., and I believe he stated the goods were sold to 'Mi-. Davidson on the same terms on which they were sold while I was a member of the firm of Davidson & Co.”
The objection made by plaintiffs to this interrogatory and answer, besides its irrelevancy, was that Wood had been examined as a witness, and his attention had not been called to any such conversation.
The objections were sustained, and exceptions taken by the defendants.
It is now insisted by appellants that this evidence fully connected the plaintiffs, the defendants, the firm of W. C. T. Davidson & Co., and Davidson individually, as the successor of that firm, with the arrangement spoken of by the witness, and with the course of dealing under it, by which not only the firm, but Davidson, were to receive from time to time, and did receive, through this company, goods purchased from the plaintiffs without payment on delivery, notwithstanding the letters C. O. D.
The partnership of Summers with Davidson continued about four months, from June, 1863, to October of that year.
McDonald, who succeeded Summers as express agent, stated in his deposition that between the first and fifteenth of January, 1864, he, as agent, received a box at Stewartsville from Lesem & Brother, directed to Davidson, weighing about 270 pounds, marked “ W. C. T. Davidson & Co.,” supposed to contain merchandise and marked “ C. O. D.” Had received the way-bill some days previously. There was to be collected on the box $356.34. When he received it Davidson requested witness to deliver it to him without paying the collection bill at that time, but promised to pay witness in a very short time afterward, stating if he could get the box he could realize the amount in a very few days, and would then pay the bill; and that he had ' been in the habit of receiving “ C. O. D.” goods from Summers in that way. He further said that Lesem & Brother had written him a letter allowing him to receive his goods from the express agents without paying on delivery, but by sending them one hundred dollars every ten days; and he read to witness a letter, purporting to be from plaintiffs, authorizing him to do so. On the next day Davidson paid witness $250, and promised to pay the balance in a very few days, as soon as he could get his goods on sale, and thereupon he delivered the box to Davidson, taking himself the responsibility for the balance; that he immediately inclosed this money to plaintiffs at Quincy by the defendants, Davidson paying the charges on it.
The appellees contend that the exclusion of this evidence was proper, for the reason, if any such custom or agreement existed, it was with Davidson & Co. when Summers was a partner, and not with Davidson alone; and that no such arrangement with Davidson alone could avail the appellants as a defense, or preclude Lesem & Brother from afterward making a special contract with appellants contrary thereto; nor could it in any way affect or modify the written contract between these parties in this suit. And they further insist that if the excluded answers had gone to the jury, they could not have affected the verdict, and for this position they rely on the testimony of McDonald, wherein he states that he delivered the box on. his own responsibility, uninfluenced by any letter or by any previous custom or arrangement.
Such is the testimony of McDonald. He states expressly, on being importuned by Davidson to deliver the box, and on his reading a letter from Lesem & Brother, he peremptorily refused to deliver it. That on the next day, on the payment by Davidson of $250, he did deliver the box, and took the responsibility on himself for the balance. As to the letter Davidson, in his deposition, stated he received from Lesem & Brother, there is strong evidence to show it to be a fabrication. The proof is quite clear that neither member of the firm could; write English, and their book-keeper, Sanders, who attended to the correspondence of the firm, swears there never was such a letter as testified by Davidson, and that there could not have •been without his knowledge; that they, the Lesems, never write English letters; that neither of them can write English, and that all the correspondence is done by Wood or by him, Sanders. But McDonald did not deliver the box on the faith of any agreement or letter, but on the payment, as he says, of part of the amount due, he taking the responsibility for the balance.
But, admitting there had been an understanding or agreement to release, goods from the O. 0. D., that did not preclude these parties from contracting not to deliver until the money was paid. The contract by the express company was in writing, and made subsequent to Summers’ retiring from the firm, and on a well settled principle of law, it could not be changed in its legal import and effect by a parol agreement. We think the objections to these interrogatories and answers were properly sustained by the court.
Ho argument is offered by appellants upon the exclusion by the court of the ninth interrogatory and answer thereto.
It is proper here to discuss the nature and import of the letters O. O. D., as placed on the receipt and on the box by the express company. Do they amount to a contract ? And, if so, what is the extent of it ? What are the liabilities assumed by the company, and how can they discharge them ? These are interesting questions to the whole business community, and , deserve careful and full investigation, the more especially after the effort made by this company to deprive them of any force or meaning. The counsel treats them as an enigma not legally explainable.
We are inclined to think that, if an express company or other common carrier resort to enigmas in the conduct of their business, they shall not alone be permitted to afford the solutions. Their agent testifies that the letters mean that the express company was to collect of the consignees, on delivery, the amount due from him and marked on the package, and to return such amount to the consignors; and this is the experience of the whole business community employing such an agency. The letters are the initials, and so understood, of the words “ collect on delivery,” and this undertaking, by those letters the appellants assumed, and they must be held to a strict performance thereof. It is admitted by the appellants’ counsel that such is proved by the witness Durfee to be the extent of the undertaking ; and being so, he contends the proofs and allegations of the appellees do not agree. It is true, the proof does not cover all the counts in the declaration, but it does fully establish the first count, that setting forth the contract precisely as proved by the meaning given to the letters C. O. D. They mean, and were so understood by both parties, that the express company should transport the box to Stewartsville, Missouri, and then deliver it to the consignee, first receiving from him the amount of money marked on the box, and deliver that money to the consignor.
We are of opinion, however, that, in order to introduce parol proof in what sense characters or letters which have not acquired a legal signification are used in a particular trade or business, it is necessary, in a suit brought upon a contract embodied in such letters or characters, to aver in the declaration that they are so used; and, as this case must go back for another trial on other grounds, the plaintiff below can take leave to amend his declaration by averring the usage of express companies, or of this particular company in question, in regard to the letters or characters O. O. D.
The point made, that Durfee was not the agent of appellants, with power to make such a contract, is not tenable. He was the agent of the company, and prima facie clothed with all the power necessary to enable him to carry out, on his part, the business and objects of the company, and there is no proof that the company hás, at any time, repudiated his acts. There is an express admission, on the record by the appellants, that he was their authorized agent, and they must be bound by his acts done in the regular course of their business.
How as to the amount of the recovery, which brings up the question of a new trial, the motion for which was overruled.
It appears from the evidence of McDonald, that when he delivered the box of merchandise to Davidson, he, Davidson, paid him on account thereof two hundred and fifty dollars which he transmitted to appellees, and which they received. The box was of the value of three hundred and fifty-six fW dollars, leaving a balance unpaid of one hundred and six fVV dollars, for which McDonald, as agent of the company, assumed the responsibility. For this two hundred and fifty dollar's which appellees received, the appellants cannot, on any known principle of law or justice, be chargeable, but for the balance only of one hundred and six T3~V dollars, though Wood testified that appellees had never been paid for this box of goods, still the fact is the appellants received and paid over to them two hundred and'fifty dollars on account thereof, which, we infer from the testimony, was passed by appellees to Davidson’s credit on some other account to the prejudice of the appellants, and, being so, Wood might testify this box of merchandise was not paid for. How, if this was a question between Davidson and appellees, they might perhaps claim they had a right to apply this payment, but it being a question of a different character wholly, the appellants, have a right to insist that they should be allowed this payment of two hundred and fifty dollars, as it was received by them on a specific account and which they duly paid over to the appellees. Davidson ceased to be the debtor on account of that specific box of merchandise, to the extent of this sum paid McDonald when he so paid it, and the company were discharged of that amount when they forwarded it to the appellees, and which they received. The verdict then, should have been for the balance only, being one hundred and six tYó dollars, and for this error in finding the whole sum against the company, the verdict should have been set aside and a new trial awarded. For refusing so to do, there was error, and for the error the judgment must be reversed and a new trial had.
The appellants also complain of errors in the instructions on the part of the appellees, and specify as erroneous the third, fourth and seventh. We have considered those instructions, and perceive nothing objectionable in either of them. As to the fourth instruction of appellants refns.ed by the court, we think the refusal was proper, as there was no evidence of an existing agreement such as alluded to in the instruction.
For the reasons given, the judgment must be reversed and the cause remanded for a new trial.
Judgment reversed.