94 Vt. 417 | Vt. | 1920
On February 27, 1915, the plaintiff was about to ship from Lyndonville to Blandensville, Illinois, by freight, a carload of ponies, and had loaded them into a live stock car, when the defendant, agent of the American Express Company, solicited the shipment by express. The rate by express was discussed, and the defendant offered to look it up, and did so, and named the rate as $285. Later in the day a contract in writing was entered into between the plaintiff' and the defendant, acting in behalf of and for the express company. A blank contract over the signature of the American Express Company was filled out by the defendant, who signed under the signature of the express company as agent, and under his name the contract was signed by the plaintiff. The price fixed in the contract for the shipment was $285, the rate named by the defendant. The ponies were unloaded from the live stock ear and loaded into the express company’s car, and from there were shipped to the point of their destination, the plaintiff accompanying them, and when he arrived at the place of delivery, he unloaded the car, paid the contract price for the shipment, and advertised the ponies for sale. On the following day the express agent of the express company at Blandensville madé a demand upon the plaintiff for the payment of the further sum of $71.26, being, with the sum already paid, the correct charge for the shipment, according to'the schedule of rates filed with the Interstate Commerce Commission, and threatened to attach the ponies unless payment was made. Thereupon the plaintiff telegraphed the defendant: “Express agent here wants $71 on car of ponies. What will you do? Answer immediately.” Defendant answered: “Pay it. Referred to superintendent here. He will arrange refund.” The plaintiff then paid the extra charge.
If the plaintiff can recover at all, it must be upon a contract between himself and the defendant, for the action is in contract in the common counts. No question of fraud or negligence is involved. The sole question is: Do the findings of fact sustain the judgment below ? The court has found that the defendant, in making the contract of shipment, “was acting for and in behalf of the American Express Company. ’ ’ This leaves
Judgment reversed, and judgment for the defendant to recover his costs.
On Motion for Reargument.
The foregoing opinion being promulgated, the .plaintiff moves to reargue the case, assigning as a reason why the motion should be granted ‘ ‘ that a material mistake in law was made by this Court in deciding that it was error for the lower court to render judgment in said cause in favor of the plaintiff.” The mistake assigned is that the Court “overlooked the rule of law (which should be presumed, in support thereof, to have induced the judgment below) that, if the defendant, acting as agent for the express company in making the contract of shipment or in promising a refund of the extra charge, did so without authority to make the particular contract or to make the particular promise, and this was unknown to the plaintiff, the defendant made himself personally responsible as a matter of law.”
The motion is without merit, and the same is overruled.