Burriss & Haynie v. Missouri Pacific Railway Co.

105 Mo. App. 659 | Mo. Ct. App. | 1904

SMITH, P. J.

The defendant is a public carrier and this action was brought against it for the breach of its common-law duty. To the general denial of the answer was added allegations in substance that the only cattle which • defendant ever undertook to transport in which plaintiffs claim to be interested were three carloads said to contain 104 head which were delivered to it by the Drovers’ Live Stock Commission Company and consigned to plaintiffs, but the defendant did not know whether they were the same as those described in the plaintiffs’ petition; that the only contract of shipment ever made with regard to said cattle was entered into with the said Drovers’ Live Stock Commission Company and not with plaintiffs, and that it was not liable to plaintiffs under said contract. It was further alleged that the only contract which it ever made with the Drovers’ Live Stock Commission Company for the transportation of three carloads of cattle was a written contract in which the defendant is recited to be a party of the first part and the Drovers’ Live Stock Commission Company was the party of the second part. Certain limitations and restrictions contained in the contract are pleaded and by reason of which it was claimed the defendant was not liable. The replication was a general denial.

There was a trial before a jury during the progress of which the defendant offered in evidence the contract of affreightment pleaded in the answer, and which offer was by the court rejected on the ground that it — the contract — did not appear to have been executed by the defendant. It does not appear to have been signed by the defendant, though its name appears to have been twice imprinted thereon with a rubber stamp. Under some circumstances this would not perhaps be regarded as a sufficient signing or execution, but whether it was signed by the defendant or not the evidence shows that it was delivered by it to the consignor and signed in duplicate by the latter, one copy of which was retained by defendant and the other was delivered to the plaintiffs and the cattle shipped under it. The plaintiffs, as appears from the signature of one of them on the back of the contract, accepted a pass issued by defendant to them in accordance with the stipulations of said contract, and so it will not do to say that such a contract though not signed by one of the parties is not equally binding on them both. Under these conditions it is as binding as if it had been signed by both. Am. Pub. & Engrav. Co. v. Walker, 87 Mo. App. 503.

Although the answer pleaded that the contract was entered into with the Live Stock Commission Company, the consignor, yet an action could be maintained by the plaintiffs, consignees, for any breach of it. “ . . . And it may be stated generally that if goods are delivered to the carrier on behalf of the consignee and at his request or by his direction, either express or implied, and no other fact appears, the legal presumption will be that the property right in the goods immediately upon such delivery became vested in him and that he is the proper party to bring an action against the carrier, either in assumpsit in his own name upon the contract with the consignor as his agent or in a ease for breach of duty on the part of the carrier, or in the name of the agent for his use upon the special contract of affreightment. ’ ’ Hutchison on Carriers, sec. 734, and cases cited. It is therefore obvious that the contract thus executed is one whose obligations may be enforced by either party to it. No good reason is seen why the restrictive contract pleaded by defendant should not have been received in evidence. The exclusion of it necessarily precluded tbe defendant from the further development of the several defenses pleaded by its answer, and in that way it was prejudicial.

The judgment must accordingly be reversed and the cause remanded.

All concur.