149 Mass. 196 | Mass. | 1889
This is an action of trover for the conversion of nineteen horses. The horses were shipped by the plaintiff on the Pennsylvania Railroad at Philadelphia for Boston, were delivered by that company to another at Jersey City, and were carried the last part of the way over the defendant’s line. The plaintiff prepaid the freight demanded, which was forty-four dollars. But the Pennsylvania Railroad, in making up the total, allowed only thirty-two dollars for carriage east of Jersey City, instead of fifty dollars as it should have done by the defendant’s tariff, so that there were eighteen dollars still to he paid if the defendant was to receive its usual rate.
At the time the defendant accepted the goods for carriage, it had notice of the contents of the way-bill, from which perhaps a jury might have inferred that a railroad agent versed in its abbreviations would have understood that there had been an attempt and an intention to prepay the freight. It had not seen the written contract between the plaintiff and the Pennsylvania Railroad. This contract was shown to the defendant before the refusal of the latter to deliver. It contained the words “ Frt 44.00 prepaid,” and also a promise by the plaintiff to pay the Pennsylvania Railroad at the rate of twenty-two cents per hundred pounds, which would make the total forty-four dollars. On the other hand, it showed that the horses were to be carried to Boston, and it did not purport to bind the Pennsylvania Railroad as a carrier for the whole distance, but contemplated delivery to other carriers not specified. We are to take it also that the Pennsylvania Railroad was not the agent of the defendant, as the plaintiff’s counsel disclaimed that ground. When the horses arrived at Boston, the defendant refused to deliver them except upon payment of the amount unpaid, which is the alleged conversion. The verdict was for the defendant.
The question is, whether the defendant had a lien for the freight due to it according to its schedule and unpaid. The answer is not to be found in the letter of the document, but in general principles of law and considerations of policy. The plaintiff contends that the Pennsylvania Railroad was a special agent, having no ostensible authority greater than that which he actually intended to give it, or at least that, if the defendant had notice that he had prepaid the freight demanded, it had
But we think that there are weightier considerations in favor of the defendant. Suppose that it had had the facts definitely before it, it would have seen, to be sure, that the plaintiff did not contemplate paying any more money, but it would have seen also that he did contemplate and desire that the horses should be carried through to Boston by a continuous and speedy passage. The existence of the latter expectation is confirmed by the plaintiff’s declaration, and by his testimony. He was not entitled to have both his expectations made good by the defendant. An unforeseen case had arisen, and the defendant was called on by the plaintiff’s forwarding agent to act at once in some way. Potts v. New York & New England Railroad, 131 Mass. 455. The forwarding agent, whatever its obligations to the plaintiff, only consented to be liable personally to the defendant for thirty-two dollars, but required the defendant to forward the goods. The defendant was not bound to carry for less than its full charge, if it had any right to do so. But if the demand to forward was authorized ostensibly, or by implication, that is to say, if the carriage would give it a lien, it was liable to the plaintiff if it refused, except that it might demand prepayment. The plaintiff was not present, and it might take time and cost money to communicate with him; the horses were perishable, and their keep would probably have cost more than the unpaid freight if they had been delayed; although we do not now decide whether these last facts make a difference in the law. If the plaintiff had a contract with the Pennsylvania Railroad, that company could be made to indemnify the plaintiff in the place where the contract was made. Under such circumstances, there can be no doubt, what course was most for tho advantage of the owner,' or what directions a prudent owner, if present, would give, and the analogies of the law would imply a corresponding authority in the defendant. Knight v. Providence & Worcester Railroad, 13 R. I. 572, 576. Pierce v. Columbian Ins. Co. 14 Allen, 320, 323.
If the effect of the plaintiff’s instructions were doubtful, the
It is to be observed that the principle that no man’s property can be taken from him without his consent, express or implied, has not prevented the last of a line of carriers from maintaining its lien when the first carrier has forwarded the goods to a wrong place. Briggs v. Boston & Lowell Railroad, 6 Allen, 246, distinguishing Robinson v. Baker, 5 Cush. 137. Whitney v. Beckford, 105 Mass. 267. Patten v. Union Pacific Railway, 29 Fed. Rep. 590, disapproving Fitch v. Newberry, 1 Doug. (Mich.) 1. Vaughan v. Providence & Worcester Railroad, 13 R. I. 578. Yet in that case the last carrier might be said to have notice that the forwarding agent’s authority was limited to sending the goods to the place directed by the shipper.
A subordinate argument was suggested, that the plaintiff was entitled to go to the jury on the allegations of unreasonable delay in transportation and of detention of the horses upon the defendant’s cars. But there was no evidence of unreasonable delay by the defendant after the horses were received by it, and the consequences of the detention after arrival are only alleged as matter of aggravation of the alleged wrongful refusal to deliver them. As the refusal was rightful, negligence in the care of the horses while detained, if any there was, cannot be relied
Judgment on the verdict.
