| Mich. | Oct 7, 1868
Of the exceptions appearing in the record, we shall notice those only Avhich are relied upon in the brief for the plaintiffs in error.
First: That the Circuit Judge erred in alloAV'ing the contract held by Perkins to be read in evidence, before the duplicate, in the hands of the Bail Boad Company, had been produced, or its absence accounted for. This Ave think not Avell taken. The contract signed by the company was deliArered to Perkins as the evidence of their undertaking and liability; and there is no occasion for him, Avhen he is seeking to enforce their obligation, to call for the production of
Second: That proof of delay on the part of the Rail Road Ooppany, before the signing of the written contract, was inadmissible. This objection is on the theory that the written contract merges all prior negotiations, as well as the implied contract which the law would raise from the reception of the cattle for transportation. Undoubtedly the writing is to be the measure of the company’s liability from the time it was given; but there is nothing in its terms which purports to waive any claim to damages which might' have accrued in favor of Perkins previously. When the company received the cattle for transportation, they impliedly undertook to transport them safely, and without unreasonable and unnecessary delay; and this implied contract remained in force until the parties substituted a written one, and it must measure the rights of the parties up to that time. To hold that, because the company were in the practice of carrying only under written contracts, they might delay indefinitely, without liability, after the receipt of the cattle, until they saw fit to give a written contract, would be to advance a doctrine without basis in reason or justice. The custom does not preclude implied or oral contracts, for the parties may vary from it in any case; nor does it make the written contract, when given, relate back to the reception of the cattle: its effect is only to govern the obligations of the parties from the time of its execution.
We are referred to the case of M. S. and N. I. R. R. Co. v. Shurtz, 7 Mich. 515, as authority that, up to the execution of the writing, the cattle were simply in the hands of the Company, awaiting shipment. But the two
Third: That the court erred in allowing the witnesses to testify to a knowledge of the New York market derived from the newspapers. This objection is met by the decision of this court in Sisson v. Cleveland and Toledo R. R. Co. 14 Mich. 497. That case does not require that the newspapers themselves should be put in evidence, but it recognizes them as a proper source of information to which .persons interested in the markets may resort; and there is no reason why they should not testify the result of their examinations, as they might the result of inquiries in the market places.
These remarks appear to cover the ground taken in the brief of the plaintiff in error.
Something is said about one car load of cattle transferred to Perkins by another person after they had been received at Toledo; and in regard to which, the judge was asked to charge the jury that the Company was not liable for any delay until the transfer was actually made on their books. This he declined, but- did charge them that the Company was not liable until actual notice was received of the transfer. The brief assumes that notice of the transfer was not given to the Company until the written contract was entered into; but the record shows that the written transfer was made on the Company’s books the day before. The liability of the Company, however, could not depend on the plaintiff’s ownership appearing by their books: if they had notice of it, that would be sufficient.
We discover no error in the record, and the judgment must be affirmed.