Hoagland v. Hannibal & St. Joseph Railroad

| Mo. | Feb 15, 1867

Holmes, Judge,

delivered the opinion of the court.

The petition contained two counts, one sounding in damages for the detention of personal property, and the other founded upon matters of contract. These causes of action cannot be united in the same petition ; nor did they arise out of one and the same transaction. There was a misjoinder of counts.

The second count united four several causes of action founded upon so many distinct contracts for the transportation of lumber at different times. They were improperly united in the same count.

For both reasons, the motion in arrest of judgment should have been sustained — Rev. Stat. 1855, p. 1228; Clark v. Hann. & St. Jo. R.R., Co. 36 Mo. 202" court="Mo." date_filed="1865-08-15" href="https://app.midpage.ai/document/clarks-v-hannibal-8001695?utm_source=webapp" opinion_id="8001695">36 Mo. 202.

It is difficult to say what or whether any good cause of action against the defendant is stated in the second count. It is alleged that the defendant and the Chicag’o, Burlington and Quincy Railroad Company “ confederated together and agreed” to transport freight from Chicago to Omaha, N. T., at certain fixed rates of freight agreed upon between them for the several parts of the connected route, including a line of steamers running on the Missouri river from St. Joseph to Omaha, owned and conducted by the defendant. It is there averred that the plaintiff made his several shipments of lumber at different dates at Chicago, and they were received for transportation according to the custom established. There are no distinct allegations which make. the plaintiff a party to these agreements or arrangements. There was evidence tending to show merely, that there was some understanding between the agents of the two railroad companies and the line of steamers in relation to the forwarding . of freight received for transportation at Chicago, and concerning the rates of freight to be charged by each on the several parts of the route from Chicago to Omaha. The action was not founded upon the written freight contracts which were signed by the Chicago, Burlington and Quincy Railroad Company, and contained an express provision that the company was to be responsible only for the delivery of the lumber to the next carrier at the termination of their railroad at Quincy. They contained also a guarantee by that company that the property should be carried over the other parts of the route at certain rates of freight therein specified for each. It was not shown that the defendant was a party to these contracts, otherwise than as they received the several lots of lumber at Quincy, under the way-bills for transportation over their railroad. It was not denied that the property was safely carried to the termination of the railroad at St. Joseph, and at the rates guaranteed by the former company. On the trial the plaintiff appears to have abandoned the cause of action which he had undertaken to state in his petition, and submitted his case to the jury under instructions predicated upon a cause of action which was not stated in the petition; the evidence tending to show no more than that the defendant was merely the agent of the first company to forward the lumber, and undertook as carrier for its own part of the route only.

It is insisted that the defendant was bound by express contract to carry and deliver the lumber of the plaintiff at Omaha. No such contract was found, nor do we think it can be implied from the mere fact that the property was received under the way-bills for transportation over the railroad at the rates of freight fixed for that part of the whole route. No more could be implied than that they undertook to carry the property to the end of the railroad and deliver it to the next carrier. It was admitted that the defendant owned the line of steamers on the Missouri river, and it was proved that the manager of the line was conducting it as the agent of the defendant, and that it was run as a separate line of transportation under the name of the Missouri River Packet Line, though in connection with the railroad. The corpora- j tion had no power by its charter, nor have the officers and j agents of the company any authority by law, to run a line of l! steamers on the Missouri river as a part of the company’s line • of transportation, and all contracts made beyond the authority given by their charter were utterly void — Pearce v. Madison & Indianap. R.R. Co., 21 How. (U. S.) 442. We need go no further than to say there was nothing in the evidence from which it can legally be inferred that the defendant had extended their railroad route to Omaha, N. T., so that when they received goods from other railroads at Quincy, they became bound to carry them to Omaha, or to any point beyond the termination of the railroad itself, unless they had made some contract to do so.

On the case made, we think the plaintiff’s instructions that were given should have been refused.

As' the case must be reversed mainly upon points of pleading and evidence, we do not undertake to settle the principles of law which may govern when distinct issues are made up for trial upon pleadings which may have some approach to legal precision. The case as presented here is such an inextricable mass of confusion and disorder, that it would be as vain as useless for us to attempt to unravel it, or to make a final disposition of the controversy on the merits. The plaintiff will have leave to file an amended petition.

Judgment reversed and the cause remanded.

The other judges concur.