128 Mass. 221 | Mass. | 1880
1. The bill of exceptions does not show any error in the admission in evidence of the plaintiff’s conversation with Bolfe. He was the freight agent of the defendant, who made the contract with the plaintiff, and was the person to whom the plaintiff might properly apply to account for the missing case. Statements made by him in the course of investigating the matter of the loss would be declarations within the scope of his agency, and admissible against the defendant. Lane v. Boston & Albany Railroad, 112 Mass. 455. The defendant contends that the statement made in the conversation, that “ we or the Clyde Line will have to pay for it,” was not within this rule, because it was a mere admission of the liability of the defendant. But it was accompanied by a statement that “ we have delivered it to the Clyde Line,” and was thus a denial of the defendant’s liability. It contained an implied admission that the case had been delivered to the defendant, and in this view was competent, even if it had been an admission of the defendant’s liability. For the same reasons, the letters of Bolfe and of Lincoln were properly admitted.
2. Bolfe was produced as a witness by the plaintiff, and, upon cross-examination, the defendant asked him “if he had any authority to take such goods as this case contained.” This question was rightly excluded by the court. Bolfe was the freight agent of the defendant at Lawrence, held out to the world as authorized to receive goods and to make contracts for their transportation. There is nothing to show that the plaintiff had notice of any limitation of his authority. He had the right to assume that Bolfe had the general authority implied by his
3. The contract between the parties contains the following provision: “ No responsibility will be admitted, under any circumstances, to a greater amount, upon any single article of freight, than $200, unless upon notice of such amount and a special agreement therefor. Specie, drafts, bank-bills and other articles of great intrinsic or representative value, will only be taken upon a representation of their value, and by a special agreement assented to by the superintendent.” The defendant asked the judge to rule that, as the plaintiff had not given notice of the value of the lost case, and had made no special agreement as to its transportation, assented to by the superintendent, he could not recover.
The plaintiff admitted that the first clause of this provision applied to this case, and claimed and recovered only a verdict for $200. The other clause does not specify portraits as articles which will be taken only upon a representation of their value and a special agreement. It specifies “ specie, drafts, and bank-bills.” In determining the meaning of the words “ other articles of great intrinsic or representative value,” the rule noscitur a sociis applies; the general words following the particular enumeration must be held to include only articles of the like kind.
A portrait is not an article of great intrinsic or representative value, like specie or drafts or bank-bills, and therefore the Superior Court rightly refused to rule as requested in the first and second prayers of the defendant.
4. The defendant asked the court to rule that “ the plaintiff can recover only a fair market value of the article lost.” The general rule of damages in trover, and in contract for not delivering goods, undoubtedly is the fair market value of the goods. But this rule does not apply when the article sued for is not marketable property. To instruct a jury that the measure of damages for the conversion or loss of a family portrait is its market value would be merely delusive. It cannot with any propriety be said to have any market value. The just rule of damages is the actual value to him who owns it, taking into account its cost, the practicability and expense of replacing it, and such other considerations as in the particular case affect its
5. The defendant requested the judge to rule that there was no evidence of the loss of the case between Lawrence and the depot at Providence. But there was evidence that the case, together with other household furniture filling two cars, was delivered to the defendant at Lawrence, to be transported to Providence, whence it was to be carried by the “ Clyde Line ” to Philadelphia; that the two cars were received by the agents of the Clyde Line from the defendant, “ unopened and just as they were received from the north,” and were kept on them wharf carefully watched and guarded, until the goods were transferred to the steamer; and that, on unloading the cars, it was found that the case containing the portrait was not in either car. It was the exclusive province of the jury to judge of the credit and weight of this testimony. If it satisfied them that the case was not lost after the cars reached Providence, the necessary inference was, either that it was not put into the car at Lawrence, or that it was lost between Lawrence and Providence. The instruction requested, therefore, was rightly refused.
6. The judge also rightly refused to instruct the jury, as requested in the fourth prayer, that “the mere fact that the goods were not received by the Clyde Line of steamers from Providence is not evidence that the goods were lost before they arrived at the depot in Providence.” The judge was not required to instruct the jury as to what might be the effect of one fact taken separately, when it was accompanied and connected with other facts tending to establish the main issue. Packer v. Hinckley Locomotive Works, 122 Mass. 484.
We have thus considered all the points upon which the defendant now insists, and find no reason for setting aside the verdict.
Exceptions overruled.
