Chicago, St. Paul, Minneapolis & Omaha Railway Co. v. McDougald

184 Wis. 227 | Wis. | 1924

Doerfler, J.

According to the testimony of the defendant he executed the bond in question, received the cars, and stored them under instructions received from his principal at Minneapolis. The defendant at the time was not in possession of the order bill of lading and was not entitled to the possession of the cars. The plaintiff parted with the possession by virtue of the bond. Assuming the testimony of the defendant as true, his authority from his superior extended solely to the storage of the cars. He had no authority to use them or sell them. In violation of this limited authority one of the cars was. sold and delivered to a purchaser, who greatly depreciated the value thereof by operating it a distance of over 2,000 miles. The damage, therefore, to the used car is traceable solely to the unauthorized act of the defendant in violation of the instructions received from his superior. But whatever authority and instructions the defendant had from his principal, the Midland Motor Company, the plaintiff was not a party thereto. It was merely interested in transporting these cars as directed by the consignor and in delivering them to the person lawfully in possession of the order bill of lading. The defendant, not having in his possession such order bill of lading, executed the bond in question, and in delivering the cars to the defendant the plaintiff relied solely upon defendant’s liability assumed by the execution of this bond. The bond itself was ironclad and the liability 'created thereunder was absolute, and the only risk assumed by the plaintiff in delivering the automobiles consisted in the defendant’s solvency, with reference to which there was no doubt disclosed in the evidence. The shipment was an interstate shipment, and is governed by the provisions of the federal statutes. See Barnes’ Federal Code for 1919, sec. 7986. Such section provides:

“Persons to whom carrier is justified in delivering. — A carrier is justified, subject to the provisions of the three following sections, in delivering goods to one who is—

“(a) A person lawfully entitled to the' possession óf the goods, or.

“(b) The consignee named in a straight bill for the goods, or

“(c) A person in possession of an order bill for the goods, by the terms of which the goods are deliverable to his order; or which has been indorsed to him, or in-blank by the consignee, or by the mediate or immediate indorsee of the consignee.”

Sec. 7987 provides as follows:

“Liability of carrier for misdelivery. — Where a carrier delivers goods to one who is not lawfully entitled to the possession of them, the carrier sháll be liable to any one having a right of property or possession in the goods if he delivered the goods otherwise than as authorized by subdivisions (b) and (c) of the preceding .section; ...”

The bill of lading upon the consignment of the goods was an order bill of lading, was negotiable, and named the Sales Corporation as the consignee.

An accord and satisfaction is a contract, and, like all other contracts, .must be supported by a good or valuable consideration. As above stated, the liability of the defendant was fixed by the bond. He was liable in any event under the terms of the bond for any damage which the plaintiff might sustain by reason of delivery of the automobiles to him. Under the provisions of the statutes above quoted, the liability of the plaintiff to the consignee was also absolute. The damage was liquidated, and, whether the alleged agreement found by the jury was entered into or not, the plaintiff received nothing further than what it was in any event entitled to. There was therefore no consideration moving from the defendant to the plaintiff to support such agreement, and the agreement at most was a mere nudum pactum. Plaintiff at 'all times was entitled to a return of the automobiles in their original condition, and could enforce such return by proper action; or, in the event of refusal, could recover the full value thereof, together with costs and expenses, or could accept part of the automobiles which were undamaged, and hold the defendant liable for damages to the injured automobile, together with costs and expenses. It was clothed with such authority by virtue of defendant’s bond. When the damage became fixed and liquidated, and after it had paid the Sales Corporation the amount thereof, plaintiff was entitled to a full recovery from the defendant of the amount, and the defendant had no valid defense to such claim. In brief, the plaintiff received nothing in the transaction but what it was entitled to.

The learned circuit judge was therefore right in ordering judgment for the plaintiff, and such judgment must be affirmed.

By the Court. — Judgment affirmed.