39 Mo. App. 88 | Mo. Ct. App. | 1890
delivered the opinion of the court.
This was an action to enforce a common-law liability of the defendant as a common carrier, for failing to deliver to the plaintiff certain goods which it had received from an agent of the plaintiff at Mascoutah in the state of Illinois, to be shipped to the plaintiff at St. Louis in this state. The answer is a general denial, and also a paragraph, setting up that there was a special contract between the plaintiff and the defendant, under which the goods were shipped, and whereby it was agreed that the defendant should be exonerated from liability in the case of a loss of the goods by fire, and alleging that the goods were lost by an accidental fire in the defendant’s warehouse at East St. Louis, Illinois. The answer also pleaded that the plaintiff gave a special direction to the defendant, that the goods were to be delivered at East St. Louis in the state of Illinois to a corporation called the St. Louis Transfer Company, to be hauled from East St. Louis to the storehouse of the plaintiff .in St. Louis ; that in consequence of this special direction the goods were stored by the defendant in its warehouse in East St. Louis and were there, before being taken out by the transfer company, consumed by an accidental fire and without negligence on the part of the defendant.
The case was tried before a jury, and there was a verdict and judgment for the defendant. The evidence adduced at the trial showed that the goods in question were purchased by an agent of the plaintiff, and were
It thus appears that by the terms of the original contract of shipment the destination of the goods was St. Louis in Missouri, and that the goods were destroyed by fire while in transit at East St. Louis, Illinois. By the principles of the common law, presumed in the absence of evidence to the contrary, to be in force in the state of Illinois, a common carrier is liable for the loss of goods entrusted to him for carriage, except where the loss occurs through the act of Grod or the public enemy; he is consequently liable at 'common law-for the loss of the goods while in his hands from an accidental fire. " This is not questioned.
The questions which were really contested at the trial were, therefore, whether there was a special contract, as set up in the answer, between the plaintiff and the defendant limiting this common-law liability of the defendant, so as to exonerate it from liability in case of the destruction of the goods in transit by an accidental firesecondly, whether the plaintiff had given to the defendant a direction changing the terms of the original contract of shipment, by which it became the duty of the defendant to deliver the goods at East St. Louis to the St. Louis Transfer Company, to be by them carried to the plaintiff in their wagons, instead of forwarding
We say that we do not understand that this principle is questioned, but if it is questioned, we add that we are of opinion, as matter of law, that if such a direction was given, the transfer company thereby was made by the plaintiff his a'gent to receive the goods at East St. Louis : that the defendant, in obeying the direction, had no further duty to perform than to deliver the goods to the transfer company, and that, when it unloaded the goods from its car and placed them in its warehouse, there to remain until the transfer company should be ready to receive them, its liability as a carrier ended and its liability as a bailee commenced.
The contract of 'affreightment, it is to be remembered, was made in the state of Illinois, and was to be chiefly performed in that state. Its validity and interpretation are, therefore, to be governed by the'law of Illinois. Qf this proposition there is no doubt. The rule is, that matters bearing upon the execution, interpretation, and validity of a contract, are to be determined by the law of the place where it was made. Scudder v. Bank, 91 U. S. 406; Aymar v. Sheldon, 12 Wend. (N. Y.) 439; s. c., 27 Am. Dec. 137, and note 27 Am. Dec. 141, where nu'merous cases to this proposition are cited. And while it is a rule that, where a
But, as an additional reason for holding that this case is governed by the law of Illinois, we may recur to another rule of private international law, which is, that where a contract is to be performed partly in one country and partly in another country, each portion is to be interpreted in respect of questions relating to performance, according to the laws of the country where it is to be performed. Pope v. Nickerson, 3 Story (U. S.) 474, 485; Pomeroy v. Ainsworth, 22 Barb. 118, 128.
But there is still another view, which makes it clearer that we must hold that the contract, which the defendant sets up in its answer, is governed entirely by the law of Illinois. As the defendant |)leads the contract, it is dual in its character; first, a contract of affreightment which names the final place of delivery of the goods as St. Louis, in Missouri; secondly, a supplementary contract which changes the place of final delivery from St. Louis, in Missouri, to East St. Louis in Illinois, — at which latter place the goods were destroyed by fire in the defendant’s warehouse. The contract, as pleaded by the defendant, was, therefore, not only made in the state of Illinois, but it was to be
In any view which we may take of the question, it is, therefore,- clear that the validity and interpretation of the contract of affreightment, which the defendant sets up in its answer, is governed by the laws of Illinois.
That law was put in evidence by the plaintiff, in the form of a section of the general statutes of that state, and also in the form of three decisions of the appellate tribunals of that state.. Both of these instruments of evidence were competent, under the statutes of this state, to prove the law of Illinois upon the question in issue. By section 4831 of the present Revised Statutes of this state, “the printed statute books of sister states and the several territories of the United States, purporting to be printed by the authority of such states or territories, shall be evidence of the legislative acts of such states or territories.’»’ 'The statute of Illinois was therefore properly admitted in evidence. State v. Pagels, 92 Mo. 301. By the terms of,section 4882 of the same statutes, “ the printed books of cases adjudged in the courts of a sister state may be admitted, as evidence of the unwritten or common law of such states.” The reports of decisions of the supreme and appellate courts of Illinois were, therefore, properly admitted in evidence, in so far as they were relevant to the issues on trial.
It is true that we may know, as a matter of general learning, that another clause of the statutes of Illinois (Hurd’s Ill. Stat. 1883, page 342) is to the effect-that the reasons given by the appellate courts of that state
While the decisions of that state are entitled to great respect, we cannot assent to the soundness of this conclusion. The rule that matters pertaining to the remedy are governed by the forum always assumes that there is a contract upon which a remedy is sought. It cannot be properly appealed to, to determine the question of contract or no contract. The question for decision in that case, as in the case before us, was whether a certain stipulation in an instrument of writing was a binding contract.
The governing principle by which to determine that question was, not the rules of procedure of the forum, but a rule of universal application, laid down by Mr. Justice Story in the statement that all the formalities, proofs or authentications of contracts, which are required by the lex loci, are indispensable to their validity everywhere else. Story, Conflict of Laws, section 260. The same rule is laid down by another eminent writer on private international law, thus : “A contract, so far as concerns its formal making, is to be determined by the place where it is solemnized, unless the lex situs of the property disposed of otherwise requires.” Wharton Conflict of Laws, sec. 401. The courts have gone so far as to hold that, although the parties intended that a certain instrument should be a contract between them, yet if the law of the place where it was made required it tó be stamped, and it was not stamped, it would be void in the place where the remedy upon it was sought. Alves v. Hodgson, 7 T. R. 241; Clegg v. Levy, 3 Camp. 166; Satterthwaite v. Doughty, Busbee L. [N. C.] 314. [But the rule cannot be made plainer by illustrations than it can by a mere statement of it.J Many cases illustrating the rule are cited by Story and Wharton in support of their respective statements of it. The rule must of necessity apply to such a contract as the one
Tested by the rules thus proved, the first inquiry is, whether there was evidence at the trial of this cause tending to show that the plaintiff had ever seen or assented to the special conditions limiting the liability of the defendant in case of accidental loss by fire, which were printed upon the bill of lading which the plaintiff’s agent received from the defendant upon delivering the goods to it for shipment. There is no evidence whatever that either the plaintiff’s agent, who shipped the goods and received the bill of lading, or the plaintiff himself, or any one authorized to act for him, ever assented to this stipulation ex animo. There is no evidence in .the case that the agent of the plaintiff, who received the bill of lading, ever read the stipulation or had any knowledge of it, or gave any assent to it. There is no evidence whatever that the plaintiff in St. Louis, to whom it was forwarded by his agent, ever read it or assented to it, but there is that they did not. The plaintiff does, however, admit that he had seen many bills of lading of the defendant, and the evidence
The plaintiff was therefore entitled to the following instructions, which he requested and which the court refused to 'give :
“1. The verdict must be for the plaintiff, unless the jury believe from the evidence that the plaintiff agreed to accept the goods in controversy at East St. Louis, Illinois.” .
In other words, there being no evidence tending to show the special contract set up by the defendant, its liability rests as at common law, and unless that liability was changed by the fact of having received from the plaintiff the special direction, which it pleaded, to stop the goods at East St. Louis and deliver them to the St. Louis Transfer Company, to be by that company carried to the-plaintiff in St. Louis, — it must beheld liable. Upon the question, whether the plaintiff had ever given such a special direction,' the evidence — to state the case most strongly for the defendant — was conflicting. Such evidence, as there was in behalf of the defendant on the point, was furnished by the testimony of Mr. Sample, the defendant’s agent at East St. Louis. That witness
“To the agent of the Louisville & Nashville Railway Company in East St. Louis:
“You are hereby instructed to deliver to. the St. Louis Transfer Company all less than carload shipments consigned to us.
(Signed.) E. Haktstanjct & Co.”
The witness could not testify from his own knowledge that the signature to that letter was the signature of Mr. Hartmann, or of any one entitled to sign it for the plaintiff. He confided in its authenticity from the fact that it was delivered to him by the transfer company. This, of itself, would fall short of showing that any such direction was given; but, outside of this,, the evidence for the defendant tended to show that the direction bad been acted under by the defendant for some time; that is to say that, under it, the defendant had for a considerable time been in the habit of delivering at East St. Louis to the St. Louis Transfer Company, for conveyance to the plaintiff in St. Louis, goods which they had received consigned to the plaintiff at St. Louis, and not at East St. Louis.. On the other hand, the testimony adduced on this point by the plaintiff was to the effect that no such direction had ever been given by him, but that he had given a direction to the defendant in respect of goods consigned to him at East St. Louis, but not at St. Louis, to deliver such goods to the transfer company for conveyance to St. Louis. The defendant’s contention of fact on this point is supported in the statement of the defendant’s witness, Mr. Sample, to
We assume, then, that there was here a disputed question of fact whether tbis special direction had ever been given by tbe plaintiff to the defendant. If such a direction bad been given, it operated in tbe present case, so to speak, as a supplem entary contract changing tbe terms of the original contract. Whether such a supplementary contract was made was of course matter of defense which the defendant had specially pleaded, the burden of showing which rested on the defendant. Such being the case, the plaintiff requested and the court refused the following instruction: “The burden is on the defendant to show that plaintiff gave directions, such as witness Sample testified to, in reference to plaintiff’s consent to receive at East St. Louis all small shipments of goods.” We think that the plaintiff was entitled to this instruction, especially in view of the fact that the question was a very close one, upon the evidence, whether any such direction had been given. The terms of the instruction have been criticised in that it directs the attention of the jury to the testimony of a particular witness. It is true that where there are several witnesses testifying to a particular hypothesis of fact, it is error for the court, in instructing the jury, to single out a particular witness and direct their attention to his testimony, either in the way of disparagement, as where the court gives in respect of a particular witness the familiar direction explaining the maxim,
For the-two errors pointed out, the judgment will be reversed and the cause remanded;