228 Ill. 121 | Ill. | 1907
delivered the opinion of the court:
First—Appellant urges that there was a fatal variance between the declaration and the proof, in that the declaration counts upon a joint contract and joint liability on the part of appellant and the Rock Island company to carry the chocolate from Philadelphia to Peoria Heights, while the evidence shows that there was no joint contract, and that the contract of appellant was to carry to destination, if on its road, otherwise to deliver to another carrier on the route to said destination.
Conceding that a variance between the proof and the allegations of a declaration which are intended to set forth the contract out of which the duty arises is material and fatal to recovery, as contended by appellant upon the authority of Wabash Western Railway Co. v. Friedman, 146 Ill. 583, still, as a condition precedent to raising the question of such variance upon appeal, the objection must have been made in the trial court and the variance particularly pointed out, so as to enable the trial judge to pass upon it understandingly, and to enable the plaintiff, if necessary, to obviate the objection by an amendment to the declaration. (Libby, McNeill & Libby v. Scherman, 146 Ill. 540; Alton Railway, Gas and Electric Co. v. Webb, 219 id. 563.) At the close of the evidence for appellee in the circuit court appellant moved “to exclude all evidence in the record touching the delivery of the goods in controversy, both in Philadelphia and Buffalo and in Chicago, on the grounds of a variance between such evidence and the declaration in the case.” This motion cannot be considered as specifically presenting the objection that the contract set up in the declaration, being a joint contract of the two defendants, is not the same as that established by the proof, which is a contract made by appellant to which the Rock Island company was not a party. The variance suggested by the motion existed only as to the first count, which alleged that appellant delivered the chocolate to the Rock Island company at Chicago, while the evidence showed that no such delivery was made. All the evidence concerning the delivery of the chocolate to appellant’s agent, the Philadelphia and Reading Railway Company, at Philadelphia and to appellant at Buffalo, and the failure of appellant to deliver it to the Rock Island company at Chicago, whereby it was lost to appellee, was admissible under, and was not at variance with, the allegations of the second count, as amended, and appellant’s motion to exclude that evidence was therefore properly denied.
Second—One of the conditions on the back of the bill of lading was: “No carrier shall be liable for loss or damage not occurring on its own road or its portion of the through route, nor after said property is ready for delivery to the next carrier or consignee.” It was shown, by evidence, that Wilbur & Sons had actual knowledge of the provisions on the back of the bill of lading, and that the law of the State of Pennsylvania permits a common carrier to limit its common law liability by provisions inserted in the bill of lading with the knowledge of the shipper, except as to loss occurring from the willfulness or negligence of the carrier.
Appellant contends that the loss or damage to the chocolate occurred after said property was ready for delivery to the Rock Island company, the next carrier, and that under the provisions of the contract of carriage it is therefore not liable. The clause above quoted must be read in connection 'with the other provisions of the contract. Appellant, by a provision on the face of the bill of lading, agreed to carry the chocolate to Peoria Heights, if on its road, “otherwise to deliver to another carrier on its route to said destination.” When the provision that appellant shall not be liable for loss or damage occurring after the property is ready for delivery to the next carrier is read in connection with appellant’s promise to deliver the property to such other carrier, it becomes evident that under this bill of lading the property would not be “ready for delivery” until appellant had performed all acts and made all arrangements necessary for transferring possession of the chocolate from itself to the connecting carrier. There would be but an instant between the time when the property was “ready for delivery” and the time when the property was delivered. For all practical purposes the property would be delivered when it was “ready for delivery.” Appellant has not at any time had this property ready for delivery, within the meaning of the provisions of the bill of lading. It failed to make the necessary arrangements with the Rock Island company for the acceptance of the chocolate for carriage by that company. It failed and refused to prepay the freight demanded by the Rock Island company, and therefore did not have the property ready for delivery to the latter company. The condition on the back of the bill of lading does not relieve the appellant of liability, because it did not bring itself within the terms of that condition.
Appellant contends, however, that it was not required to pay the freight demanded by the Rock Island company because appellee had not advanced to appellant any money with which to satisfy that demand. We regard this position as untenable. The uncontradicted evidence in this record is to the effect that when the rule of the connecting carrier requires the payment of freight in advance, (as was the rule of the Rock Island company when goods were billed to prepay stations,) the custom is for the delivering carrier to pay it. Moreover, the appellant had contracted to transport the chocolate from Philadelphia to Peoria Heights for fifty-eight cents per hundred pounds. Appellee’s obligation was to pay appellant that amount—not to pay to each connecting carrier its respective charges for carrying the goods. Appellant had the right to demand the prepayment of all the freight due under the bill of lading. It did not see fit to exercise that right, but undertook to transport the chocolate from Philadelphia to Peoria Heights without demanding the prepayment of the freight contracted for. Its duty, however, in regard to making delivery to the connecting carrier and of paying the freight demanded by the connecting carrier was the same as though the fifty-eight cents per hundred pounds had been paid to appellant before the chocolate left Philadelphia. Indianapolis and St. Louis Railroad Co. v. Herndon, 81 Ill. 143.
Third—Appellant, in its brief and argument filed herein, says that one of the conditions or provisions on the back of the bill of lading required all claims for loss or damage to be made in writing within thirty days after due time for the delivery of the property and that in default of such claim being so made the carrier should not be liable, and contends that appellee did not present its claim within the time or in the manner specified by this provision and that appellant is therefore relieved from liability. If any such provision is among those on the back of the bill of lading it does not so appear from the abstract furnished in this cause. The alleged error based on such provision will therefore not be considered. Rule 14 of the Rules of Practice of this court; Scott v. Carroll, 220 Ill. 198.
Fourth—It is urged that the court erred in refusing appellant’s motion for leave to withdraw its plea in bar and plead to the jurisdiction of the court. The appellant was brought in as a defendant to this suit under section 2 of the Practice act, which authorizes the plaintiff to commence his action against two or more defendants in the county where either defendant resides, and to have his writ or writs issued directed to any county or counties in the State where the other defendants, or either of them, may be found. This section contains the proviso that “if a verdict shall not be found, or judgment rendered, against the defendant or defendants resident in the county where, the action is commenced, judgment shall not be rendered against those defendants who do not reside in the county, unless they appear and defend the action.” Appellant contends that by reason of this proviso the court was without jurisdiction to render judgment against it.
While a plaintiff will not be permitted to avail himself of the provisions of this statute by making a resident of a county a defendant to a suit for the mere purpose of conferring apparent jurisdiction upon the courts of that county over persons found in other counties, yet where, as here, the resident is made a defendant in good faith and under a reasonable belief that a cause of action exists against him, and the non-resident defendants appear and defend the action, under the plain provisions of the statute the court in which the suit is pending has jurisdiction to render judgment against the non-resident defendants, even though the court directs a verdict in favor of the resident defendant. Appellant, in its correspondence with appellee, at all times insisted that the Rock Island company was liable to appellee for the loss of the chocolate. Appellant is therefore not in a position to urge that the Rock Island company was not made a party to the suit in good faith, or that it was made a party for any other purpose, than that of recovering a judgment against it, under a reasonable belief that appellee had a right of action against it. It follows that the circuit court did not err in refusing appellant’s motion for leave to withdraw its plea in bar and to plead to the jurisdiction of the court.
Fifth—Complaint is made of the action of the court in giving, refusing and modifying instructions. What has already been said in this opinion disposes of most of these alleged errors. Other errors in this' regard were cured by the remittitur entered by appellee in the Appellate Court. Some of appellee’s instructions are technically wrong, but the errors contained therein could not have affected the verdict. Under the undisputed evidence in this case appellee was clearly entitled to recover from appellant, and it would not promote the ends of justice to reverse this case for a new trial on account of the technical errors in instructions.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.
Mr. Justice Farmer took no part in the decision of this case.
