147 Ill. App. 43 | Ill. App. Ct. | 1909
delivered the opinion of the court.
At the outset of this controversy the parties diverge on the proposition whether we are concerned with a contract entered into in Wisconsin or one entered into in Illinois. Plainly the contract involved is an Illinois contract. When the parties made an agreement in Wisconsin the defendant only agreed to carry the potatoes to “Chicago, Ill.,” and to “Hold at Kolze for instructions.” Without the minds of the parties meeting again the potatoes would go no farther than Chicago, Illinois.
It is contended by defendant with reference to the addition to the Wisconsin bill of lading made in Chicago: “These words do not make a new contract. They simply change the old one. A new agreement is not established by them, but an existing agreement is ‘changed at Chicago.’” We understand that an agreement when changed, by the mutual consent of the parties, becomes a new agreement. An agreement changed is not the old or prior agreement but a new one. When there is a change the minds of the parties have met again and by the fact of the change a new agreement arises. The minds of the parties may thus meet upon the terms of the old agreement with but the slightest change, yet the agreement then made is a new one. If the parties to a Wisconsin contract, partially performed, come together in Ilinois, make some changes in their contract and then reaffirm it the new contract is an Ilinois contract. While the potatoes were still in the possession of the carrier the plaintiffs and the defendant’s agent came together at Chicago. The destination, if not the consignee, was changed and a specified route to Hattiesburg, Mississippi, was agreed upon. The changes agreed upon were endorsed or stamped upon the bill of lading the plaintiffs already had. Thereby the terms of the then existing bill of lading, or agreement of the parties, so far as lawful at the place of contract and not inconsistent with the addition then made, were incorporated in the new agreement. This was on October 12, 1906. The defendant then, as a common carrier, undertook with the plaintiffs that the potatoes should reach their new destination at Hattiesburg. According to the new contract the defendant undertook to deliver the car to the Illinois Central for further forwarding to Hattiesburg. The distance thé car was to be transported upon the defendant’s own tracks may have been very short or very long—whatever may be true in that respect does not affect the relation that* arose between the parties. The change, at Chicago, in the bill of lading, will not permit us to infer that, thereafter, the defendant sustained toward the plaintiffs merely the relation of agent or representative to turn over the car to the Illinois Central, for the previously existing bailment of the potatoes continued. There is no merit in defendant’s contention in that respect. The new contract created the relation of shipper and common carrier for delivery in Hattiesburg to the consignee, The Mahaffey Company itself. The defendant delayed four days, from October 12th to October 16th, in transferring the potatoes to the Illinois Central. It may not be material, but the fair inference is that the potatoes froze during’ that delay and considering the season of the year, not after they started into Mississippi.
Counsel for defendant assumes and asserts that the Pullen Produce Company “stood in the relation of consignee,” or must be considered as the agent of the plaintiffs. Either assumption necessarily leads to error. We do not find either to be justifiable. The consignee was, expressly, The Mahaffey Company itself and no one else. No evidence permitting us to infer any such agency appears.
Upon the conclusion that the parties made a contract in Illinois it naturally follows that the defendant assumed the duties and obligations of an initial common carrier according to the law of this state.
A common carrier is an insurer of goods entrusted to him and accountable for the loss thereof or any damage thereto unless shown to have happened by the act of God or the public enemy or to have been occasioned by an act of the shipper or some one in his position. But the burden of proving exoneration is always upon the carrier. C. & N. W. R. R. Co. v. Sawyer, 69 Ill. 285; Western T. Co. v. Newhall, 24 Ill. 466; I. C. R. R. Co. v. McClelland, 54 Ill. 58; I. C. R. R. Co. v. Frankenberg, 54 Ill. 88; C. &A. R. R. Co. v. Shea, 66 Ill. 471; M. S. & N. I. R. v. Day, 20 Ill. 375. Perhaps this rule of liability as insurer does not extend to live stock and perishable goods, but that is now immaterial. The initial carrier is liable for the acts of all succeeding carriers for the entire route. St. L. & S. W. Ry. Co. v. Elgin M. Co., 175 Ill. 557; I. C. R. R. Co. v. Frankenberg, 54 Ill. 88; Coats v. C., R. I. & P. Ry. Co., 134 Ill. App. 217; I. C. R. R. Co. v. Copeland, 24 Ill. 332.
When the car of potatoes reached Jackson, Mississippi, the common carrier then having them in charge did not follow the terms of the contract of bailment, but departed therefrom and sent the potatoes by way of the Gulf & Ship Island Bailroad instead of by the Queen and Crescent Bailroad, as the contract provided. Then, when the Ship Island Bailroad landed the potatoes at Hattiesburg a large part of them was found to be frozen and, after inspection, the purchaser, the Pullen Produce Company, refused, as it undoubtedly lawfully might refuse, to take them. Thereupon the agent of this interposed common carrier, the Ship Island Bailroad, sold the potatoes and retained the proceeds for the freight thereof, without notice to any one. Thus the potatoes were wholly lost to the plaintiffs. There is no question raised but what the plaintiffs are entitled to recover for the loss and to us it appears that there is no question but what the plaintiffs can recover from the defendant herein in assumpsit upon the contract.
Some question is made by the plaintiff in error to the effect that the record fails to show any basis for the amount awarded as damages. In the Statement of Facts by the trial court it is stated as a fact the value of the potatoes was 74 cents per bushel. We must presume that in its Statement of Facts, made for the express purpose of permitting review, the court states material and not immaterial facts. The value of the potatoes at Hattiesburg, not elsewhere, is material. Consequently the plaintiffs’ 500 bushels of potatoes were worth, at Hattiesburg, $370. We then deduct from that amount the freight to that point testified to be $153 and this leaves $217, the amount of the judgment of the trial court, which is affirmed.
Affirmed.
