38 Vt. 402 | Vt. | 1866
The opinion of the court was delivered by
The defendants’exceptions in this case present several questions for consideration, some of which are not now insisted on, and these have been treated as laid out of the case.
I. The defendants claim that they were operating the Vermont Central and Vermont and Canada Railroads as receivers under the appointment of the court of chancery, and that, being the agents and officers of that court under this appointment, they were subject to account only in that court, and were entitled to its protection and judgment in all matters growing out of the performance of their duties as such receivers, and therefore could not be made liable either as common carriers or warehousemen in this action. A court of chancery will protect a person acting under its process or authority, in the execution of a decree or decretal order, against suits at law; and will compel parties to apply to that court for relief. This protection is accorded by that court to its officers only on their own application, and is granted by the chancellor in the exercise of his discretion, and it is to be presumed that it would be granted in any necessary or proper case for such relief. 2 Story’s Eq. Jurisp., (Redfield’s edit.,) §§ 833, a, 833, b, 891; 2 Daniell’s Chancery Pr., (Perkins’ 3d Amer. edit.,) 1433. But we think that the mere fact
II. The defendants claim that the alleged duplicate bill of the goods made out in the name of Rosenberg as the purchaser, which was referred to in the testimony of Hobart, should have been received as evidence by the county court for the purpose of impeaching Rosenberg, and also as evidence on the question as to whom the goods were in fact sold by Ullman, Blumenthal & Co., — whether to the plaintiffs or Rosenberg. This bill was introduced by the defendants, and received, as evidence tending to impeach Sternau, the bookkeeper of Ullman, Blumenthal & Co., by whom the sale of the goods was entered at the time it was made, and whose deposition had been introduced and read as evidence by the plaintiffs, — the defendants claiming that the bill was in the same hand writing with a bill of the same goods annexed to the deposition of Sternau which was made out in the name of the plaintiffs, “ for I. Rosenberg,” as the purchasers; and Rosenberg had testified he did not buy the goods for himself, nor obtain such a bill. Hobart, on his direct examination testified that he thought that this bill was delivered to him by
HI. The defendants object to the charge of the court to the jury on several distinct grounds.
1. It is claimed that the charge was wrong in respect to the notice contained in the defendants’ freight tariff with the accompanying rules and regulations, and also in the margin of the duplicate receipt prepared to be signed by Rosenberg as the consignee, “i/iat all goods and merchandise will he at the risk of the owners while in the storehouses of the company” The court charged the jury that these notices would have no effect to prevent the defendants from being liable for a loss of the goods if the jury found the facts in other respects such as to make them liable. A notice to the principals in another ■transaction would be good in this, but a notice to the agent in order to bind the principals must be in the same transaction, — the principal and agent, so far as the same transaction is concerned, being regarded for purposes of notice as identical. Redfield on Railways, § 133, note 7 ; Dunlap’s Paley’s Agency, 262-3, note; 1 Story’s Eq. Jurisp., (Redfield’s edit.,) § 408. We recognize the principle that the general liability of a common carrier can be restricted or dimin-1 ished by an express or special contract; but a general notice by a carrier to the publie, limiting his obligations a3 a common carrier,
2. The important question in this case is in respect to the termination of the transit of the goods, or to the length of time in which the defendants’ relation and responsibility as common carriers continued, In the absence of á special contract varying his liability, a
The recent case of Ouimit v. Henshaw & Thacher, 35 Vt. 605, has been referred to by both parties in this case as supporting their respective claims in respect to the extent and termination of the defendants’ liability as common carriers, and the commencement and nature of their liability as warehousemen. As this is the first instance in which the decision in that case has been referred to in this court since it was made, and as I was the presiding judge on the trial of the case in the county court, I consider this an appropriate occasion to call attention to certain facts which are entitled, as I think, to be taken into account in determining the weight which the decision should have, and how far it should be regarded as binding authority. The case is a palpable illustration of the fact that questions are sometimes successfully raised in this court which were not made on the trial in the county court. It was argued in this court in Bennington county at February Term, 1861, and decided at February Term, 1863. I have carefully collated the bill of exceptions allowed on the trial with the statement of facts contained in the reported case, and find that the case as presented by the bill of exceptions is very fully and accurately stated in the report; and I accordingly refer to the reporter’s statement of the case as verifying the statements which I now make. Exceptions were taken by the defendants on the trial in the county court, on three points : 1, to the refusal of the court to rule that the evidence on the part of the plaintiff was not sufficient, prima facie, to establish a cause of action against the defendants under the declaration ; 2, to the refusal of the court to charge the jury that articles of furniture, or such articles as feather beds and bedding, could not be treated as baggage; and 3, to the charge of the court in respect to certain specified particulars, — those particulars being distinctly stated in the bill of exceptions as forming only a part of the charge which was given to the jury. In the opinion delivered in the case, the first subject of exception is not alluded to at all, and it may not have been insisted on in argument, although it was the principal question made by the
3. The court instructed the jury that if they found the plaintiffs entitled to recover in this case, they, (the plaintiffs,) were not confined to the value of the goods in New York, but were entitled to what the goods were worth át St. Albans at the time of the loss, deducting the freight which had nof been paid, and that it would be for the'jury to determine from the evidence whether the goods were worth more or less at St. Albans than the sum stated in the bill given to the plaintiffs when they purchased them, and that the plaintiffs were entitled to interest on the value of the goods from the time of the loss. The only evidence in the case as to the value of the goods was the fact that they were purchased by the plaintiffs in New York, on the 13th of September, 1860, at the price stated in this
4. Upon the evidence, it cannot be questioned that the plaintiffs were the sole owners of the goods. The interest of Rosenberg in the goods was a mere chance or possibility, and was of too speculative a character to be the subject of any action. The plaintiffs alone were injured by the loss, and we find no error in the ruling and charge of the court on this point. The consignor who owns the goods, and sustains the injury from the damage or loss,*is the proper party to bring the action against the carrier. Sanford v. Housatonic Railroad, 11 Cush. 155; Angelí on Carriers, §§ 495-512; Lapham v. Green, 9 Vt. 407.
The motion in arrest of judgment is not now insisted on by the defendants, and these conclusions dispose of all the questions which have been discussed in the argument. The result is, that the judgment of the county court for the plaintiffs is reversed, and the case will be remitted to that court with an order for a new trial.