94 Kan. 446 | Kan. | 1915
The opinion of the court was delivered by
These are appeals taken in an action begun by The E. G. Rail Grain Company, doing business at Fort Worth, Tex., against The Missouri Pacific ■ Railway Company and The Kemper Grain Company, of Wichita, Kan., to recover $574.55 damages by reason of its reliance upon the recitals of a bill of lading which was alleged to have been carelessly and fraudulently issued by The Missouri Pacific Railway Company at the instance of The Kemper Grain Company.
There is no material dispute about the facts and, briefly stated, they appear to be that on November 20, 1912, the railway company issued, at La Crosse, Kan., its shipper’s order bill of lading for a car of wheat to H. S. Fish, showing weight 64,690 pounds, consignee H. S. Fish, Wichita, Kan., with provision to notify The Kemper Grain Company at that point; that the bill of lading was sent to a bank in Wichita with draft attached; that the Kemper company paid the draft and took up the bill of lading; that the Kemper company sold the car to L. H. Harrod, who was doing business as Harrod & Company and also as The
It is insisted by the Rail company that it should have recovered $203.21, the freight paid, against The Missouri Pacific Railway Company, and also that it should have recovered the full amount against the Kemper company. It is contended by the railway company that the judgment in favor of the Rail company against it was erroneous, and by the Kemper company that the court erred in giving judgment against it in favor of The Missouri Pacific Railway Company and Charles A.
First, as to the complaint of the Rail company that the court erred in refusing it any allowance against the railway company for the freight which it paid upon the car. It was negligence in the railway company to issue a shipper’s order bill of lading representing that the car contained 110,000 pounds of wheat when' it only contained 64,690 pounds. Through the negligence in issuing the false bill of lading the Rail company was induced to pay the sight draft for $1425. Under the customs of trade and the rules of law such a bill of lading is negotiable and the Rail company had a right to rely on the bill as it was executed and negotiated. The railway company became liable to the party to whom the bill was negotiated in the regular course of business for all damages which are the natural and proximate result of the misrepresentation in the bill of lading. There is no occasion to reopen the discussion of a liability on such a bill of lading as it has received full consideration in a number of cases and there is nothing in the notations upon or in the terms of this bill to take it outside of the authorities. (Savings Bank v. A. T. & Santa Fe Rld. Co., 20 Kan. 519; Railway Co. v. Hutchings, 78 Kan. 758, 99 Pac. 230; Hutchings v. Railway Co., 84 Kan. 479, 114 Pac. 1077; Harold v. Railway Co., 93 Kan. 456, 144 Pac. 823.) The freight charge was an incident of the shipment and followed it to destination. The Rail company purchased the wheat f. o. b. Sherman, Tex., and was entitled to have it delivered there free of all charges, including freight. Before the Rail company could obtain the wheat it was compelled to pay the freight charge, and the fact that the demand was excessive was due to the fault of the railway company and the Kemper company. The representation made by them was that the car contained 110,000 pounds, and to get possession of the car and of the wheat contained in it the Rail company was obliged
There is complaint because judgment was not rendered in favor of the Rail company against the Kem-per company, and also, by the latter, that the railway company was allowed a recovery against it for $371.34; While the Kemper company had no direct relationship
“Where one deliberately gives another a false statement in writing, knowing the purpose for which it is to be used, which that other uses to deceive a third party, he is a joint wrong-doer, and must be held responsible for the consequences which follow. Smalley can not defend upon the ground that he received no benefit from the fraud.” (p. 324.)
The Rail company was therefore entitled to a judgment against The Kemper Grain Company for the full amount of the loss sustained, namely, $574.55, and because of its action in inducing and causing the railway company to issue the false bill of lading and thus incur a liability the railway company is entitled to a judgment for the amount against the Kemper company. The fact that the Rail company, at a later time, presented a claim in the bankruptcy court and endeavored to recoup its loss to some extent from the Harrod estate does not prevent a recovery in this proceeding. As the Rail company is entitled to a full recovery in the action it was also entitled, to a judgment for its costs against the other parties, and the costs of the litigation should be equally divided beween the railway company and the Kemper company.
The judgment of the district court will be modified to the extent herein indicated, and to that end the case will be remanded to the district court.