89 Ill. 244 | Ill. | 1878
delivered the opinion of the Court:
The declaration in this case contains three counts. The first and second counts are clearly so defective that the facts stated in neither of them are sufficient to warrant a recovery. The court charged the jury, that if plaintiff has proven the averments in any one count in the declaration, they should find for the plaintiff. This was error, and for this error the judgment must be reversed.
It is insisted, that under the proofs the liability, if any, was that of warehouseman, and not that of a common carrier. This position is not tenable. It is true the goods were still in the depot or warehouse, and had not been put upon the cars. They were there, however, under the proof, for shipment, at the earliest convenience of the carrier, and were not there for storage. Nothing further remained for the owner to do before shipment.
It is also insisted^ no action can be maintained against the corporation because the road was in possession of trustees for the bondholders. These trustees seem to have been exercising the same functions the corporation was formed to exercise. 'The character of the trust is not specifically shown by the proofs, but the fair inference would seem to be, that the trustees were the trustees of the corporation, of its own selection as well as of the bondholders, and were running the road to earn money to be applied in payment of the debts of the corporation. In such case, the trustees must be regarded as the agents of the corporation, in so far as relates to the transaction of business with third persons.
The judgment must be reversed and the cause remanded.
Judgment reversed.