58 W. Va. 604 | W. Va. | 1906
Lysander Dudley has appealed from a decree of the circuit court of Wood county, in a suit instituted by him against the Chicago, Milwaukee and St. Paul Railway Company, because it allows him a smaller amount than he claimed, and, although, decreeing the payment of money to him, discharged the attachment and released the bond, given for the forthcoming of the attached property, certain railroad cars, seized at Wheeling and Huntington.
The bill sought a decree for the value of two car loads of apples, shipped by the plaintiff over the Baltimore and Ohio South-western Railway and connecting lines to Elgin, Ill., . and consigned to the plaintiff himself, with directions to’ notify J. W. Sharp, of Chicago, Ill., of the arrival of the cars at their destination. Expecting Sharp to accept, and pay for, the apples, plaintiff had made drafts upon him for' their value, as per contract, attached the bills of lading to-them, and discounted them at the First National Bank of Parkersburg, and said bank caused them, in due course of business, to be presented for payment at the office of Sharp.
Upon notice of the arrival of the cars, Sharp’s agent was
The theorjr of his claim, then presented, afterwards asserted by this suit, and now urged here, as one ground of error in the decree, is that the conduct of the defendant railway company, amounted, in law, to a conversion of the apples to its own use. The argument to sustain this position treats the inspection, allowed to Sharp’s agent, as an unauthorized delivery of the property to him. That a common carrier is liable for a wrongful delivery, if in any way at fault, is perfect^ clear. Such act may be treated as a conversion. Common carriers are bound to exercise the highest degree of care in this respect. “No circumstances of fraud, imposition or mistake will excuse the common carrier from responsibility for a delivery to the wrong person.” Hutchinson on Carriers, § 344. To the same general effect, see Pennsylvania R. R. Co. v. Commercial Bank, 123 U. S. 727, and
Claim for the value of the property, as for a conversion thereof, is also predicated upon the sale of it. Whether sale could have been made for the charges for carriage, without a judicial proceeding by way of enforcement of the lien, seems not to have been raised. That depends upon whether there is an Illinois statute authorizing such sale. But it is said sale could not be made therefor in this instance because
“But while in the possession of the goods in the character of carrier, he also stands for many purposes in the relation of agent for the owner; and it is a general rule of law that, although the powers of agent are ordinarily limited to the purposes for which they are employed, yet that emergencies may arise in which, from the necessities of the case, an agent may be justified in assuming extraordinary powers; and that his acts, done fairly and in good faith under such circumstances, though entirely beyond the scope of his ordinary powers, may be binding upon his principal. Such
If, as to the property so left on its hands, the railway company is to be regarded as a warehouseman, its right to sell, the same, to prevent loss by the decay thereof, is equally clear. Any kind of imminent danger of loss or destruction will justify a sale in such case. Rea’s Admx. v. Trotter, 26 Grat. 585; Jordan v. Shireman, 28 Ind. 136.
The court erred, however, in discharging the attachment and declaring the bond released. Upon what theory this was done is not apparent, unless it was that the defendant had not only submitted itself to a personal decree by appearing and defending, but had also tendered the amount of the decree, except the interest, before suit was brought. No money was paid into court. The effect of a tender, when kept good, only prevents recovery of interest and costs. It does not pay the debt nor extinguish it. The defendant is a foreign corporation, against which the plaintiff had the right to proceed by attachment, for the sole reason that it is such a corporation. The bound taken under the attachment afforded security for the payment of the amount of the decree, either absolutely or to the extent of the value of the property attached. It was a security regularly and properly obtained, so far as this record discloses. That the defendant is amply able to pay several thousand times the amount of the decree, constitutes no reason for releasing the security and sending
For this error, so much of the decree appealed from as dismissed the attachment and released the bond must be reversed, annulled and set aside; but in all other respects it will be affirmed, with costs in this Court to the appellant, as the party substantially prevailing.
Reversed in part.