Le Sage v. Great Western Railway Co.

1 Daly 306 | New York Court of Common Pleas | 1863

By the Court.

Daly, F. J.

By appearing and pleading to the merits, the defendants waived all objections to the form of the summons. (Gosling v. Broach, 1 Hilt., 49.)

The receipt or bill of lading is in the name of both of the defendants and is signed by Beach as their agent. Upon its face it is an acknowledgment of the receipt by them of the five bales, marked as in the margin of the bill, to be transported over their lines to Milwaukee. The clerk who obtained it de: dared that nothing was said to him as to the manner in which the goods were marked; that he presented the receipt of the-Hudson River Railroad Company at Beach’s office, Beach not being there, and gave it to a young man who gave him the bill of lading; and that no questions were put to him as to how the goods were marked. Beach and the young man Haight testified to a very different state of facts which, if true, would have •exempted the defendants from all responsibility for the loss of the goods. The jury, having found for the plaintiffs, they must have discredited the statements of Beach and Haight, and their finding upon such a point is conclusive.

The bales were not in the actual custody of either of the defendants at the time of their loss upon the propeller on Lake Erie. Their mutual agent received the receipt of the Hudson River Railroad Co. He or the holder of the receipt was alone entitled to receive them in Buffalo, and if they were sent on a different route from the road of either of the defendants, it was upon the defendants to show how that occurred, and that it was under circumstances that would relieve them from responsibility. Their mutual agent by taking the receipt and giving a bill of lading assumed the control and transportation of the property from Buffalo to Milwaukee. He engaged to transport it first - by the Great "Western and afterwards by the Detroit and Milwaukee road, as marked and directed, charging the full freight for its carriage by their connecting routes, and it is now well settled that an agent of a railroad corporation may bind his principal by such a contract, (Hart v. The Rensselaer and Sara-toga Railroad Co., 4 Seld., 37; Quimby v. Vanderbilt, 17 N. Y. 312 ; Mallory v. Burnitt, 1 E. D. Smith, 234.) I see nothing | in the case to disturb the judgment.

Judgment affirmed.