| Mich. | Jun 11, 1880
In this action McKenzie recovered dam
I. The first consignment was of 12 cars of masts or spars from Fish Lake station, for which receipts were given .of the following form:
“Detroit & Bay City Bailroad Company. Fish Lake Station, August 12, 1873. Eeceived from Jas. McKenzie in apparent good order two ears spars, 4612, 6206, marked Jas. McKenzie, Yarmouth Junction, Maine. Bate paid per car, Fish Lake to Port Huron, $22 per car. Marked and described as above; contents and value otherwise unknown; for transportation by the Detroit & Bay City Bailroad Company to their warehouse at--.
Notice. See rules of transportation on back hereof.
[Signed]' . J. Kern, Agent.”
Among the rules endorsed on the back was the following :
• “ Goods or property consigned to any place off the company’s line of road, or to any point or place beyond its terminus, will be sent forward by a carrier or freight-man, when there is such, in the usual manner, the company acting for the purpose of delivery to such carrier as the agents of the consignor or consignee, and not as carriers. This company will not be responsible for any loss or damage to the property after the same shall have been sent from any warehouse or station of the company.”
It is alleged by McKenzie in the first count of his declaration that the railroad company undertook to transport these twelve cars of masts or spars from Fish Lake station to Port Huron for the price of $22 per car, but that on their arrival at Port Huron the company demanded and exacted $45 per car. The questions that arise on this count are, first, whether' the contract of the company was a contract to carry to Port Huron; and second, whether there is evidence that the company exacted and received the excessive charges.
Port Huron is not a station on the Detroit & Bay City Bailroad, but is the connecting point of the Port Huron & Chicago with the Grand Trunk Bailway. The
The evidence of the payment of the excessive charge is that of the agent of the Grand Trunk Railway at Port Huron, that he paid $505 as freight charges to that.point, by giving credit on the books of his company to the Port Huron & Chicago Railroad Company in the usual course. This, in connection with evidence that defendant made the Port Huron & Chicago - Railroad Company its agent for the purpose of collecting and receiving its charges when property was sent subject to them was sufficient. The plaintiff had a right to look to the defendant for the whole excess, whether received by itself or by another company. Schneider v. Evans 25 Wis. 241" court="Wis." date_filed="1870-01-15" href="https://app.midpage.ai/document/schneider-v-evans-6600341?utm_source=webapp" opinion_id="6600341">25 Wis. 241.
II. The second consignment was of large masts which the plaintiff claims were to be carried from Lapeer to Detroit over the road of the defendant for $300, but for the carriage of which the defendant demanded and received $700. He also alleges “that the defendant did not nor would deliver said spars or masts at Detroit aforesaid in a reasonable time after so undertaking to do so; but so
These masts, it appears, were to be and were delivered by defendant to the Canada Southern Railroad Company to be transported to the seaboard in Maine. If defendant agreed to transport them over its road for $300, there is no evidence in the record that any larger sum was ever paid to or received for it. There was serious difficulty in the transportation; some breaking down of cars and some reloading; and the superintendent of the road testified that plaintiff agreed to pay $500, besides certain charges for assistance and repairs; and it might be inferred that all of these were included in back charges afterwards paid to the Canada Southern by a company receiving the masts at Buffalo. But this would be inferred only from the fact that it is testified that the payment was agreed upon by the plaintiff; and if it was he is entitled to have none of it refunded. Moore v. Detroit Locomotive Works 14 Mich. 266" court="Mich." date_filed="1866-05-01" href="https://app.midpage.ai/document/moore-v-detroit-locomotive-works-6633595?utm_source=webapp" opinion_id="6633595">14 Mich. 266.
That the transportation of the masts from Lapeer to Detroit was seriously delayed appears in the evidence, and the causes are stated. But there is no showing that plaintiff lost a sale in consequence, or indeed that he had ever negotiated a sale. Some witnesses testify to a depreciation in the market value of such timber between the time when the masts should have been received at the seaboard if they had gone through without delay, and the time when they actually arrived there; but the plaintiff’s evidence clearly showed that there was considerable delay not at all attributable to the defendant, and it is consistent with the whole record that if there had been no other, delays, that which occurred between Lapeer and Detroit would have caused no loss. The plaintiff therefore made out no cause of action in respect to this part of his case.
Ill: The third consignment was of masts to be taken for a short distance on the road of defendant to its junction
Unfortunately the record presents somewhat blindly the facts which bear upon this question, and the' members of this court do not agree in their construction of them. It would not prove useful to attempt an expression of our views under such circumstances, and as the case must go back for a new trial, this branch of the case will not be referred to further at this time.
The judgment is reversed for the error above pointed out, and the plaintiff in error will recover costs in this court.