McLaren v. Detroit & Milwaukee Railroad, 23 Wis. 138

McLaren v. Detroit & Milwaukee Railroad

23 Wis. 138 | Wis. | 1868

Cole, J.

It appears to us that there is not enough shown in this case to excuse the company. Having received the lard, it was under obligation to transport it within a reasonable time to the terminus of its road, Detroit, and tender it to the next carrier to be transported to its destination. This, it is admitted, the company did not do. There was a long delay, much beyond the period usually required to transport goods from Milwaukee to Detroit at that season of the year. But it is said that the defendant was excused from performing its contract to deliver the goods to the next connecting line at Detroit, on account of the temporary obstruction of freight east of that point. The testimony in regard to the block of freight was substantially the following: Eoxley, who was the freight agent for the defendant at Milwaukee in the month of Decembei, 1864, and January, February, and March, 1865, and remembered shipping the lard for the plaintiff, testified, that he was called upon in January by McLaren to explain why the lard shipped in December had not ai’rived at its destination. He says that he took steps to trace it up, and was told by the agent *142at Detroit that it bad not arrived at that place. lie then proceeds : “ I wrote either to the agent at Grand Haven or the superintendent of the road at Detroit, or both, and found that the lard had been lying at Grand Haven, owing to the inability of the agent at Detroit to make room for it in his depot. ■This inability of the agent at Detroit to take the lard, arose from the inability of the Great Western and Grand Trunk railways to take freight from him. I state this merely on information from John Crampton, general freight agent of the Detroit & Milwaukee Railroad company, and other officers connected with the road.” Reekie, who was station agent and check clerk for the road at Grand Haven at the same time, testified that the lots of lard were delayed at that point, as he was informed, by a block of freight at Suspension Bridge; that this prevented the Great Western road from receiving freight from the Detroit and Milwaukee road at Detroit. He adds: “ This block commenced some time in December, 1864. The block at the bridge occasioned the block at Detroit; this in its turn occasioned the block of freight at Grand Haven. To break the block at Grand Haven, I telegraphed to the superintendent of the road at Detroit. In reply I got two messages, — one that there was no need to send cars, as the Great Western could not take the freight at Detroit. Subsequent to this, I got a message from the superintendent, directing not to send any more through freight until further orders.” On his cross-examination, he says that it must have been the latter part of January when he received that dispatch. Gray, who was freight agent of the company at Detroit, testified that the lard was not detained at Detroit, but was forwarded without delay by the Great Western road. He says: “I know that at the beginning of December, and all the winter through, up to the end of March, there was a block at Suspension Bridge, and the said road would only take a limited quantity, and the consequence was, my warehouse was filled right through with *143freight. During a portion they would only receive perishable freight. On the 11th of February they gave me notice that they would receive freight of no kind from us. I know the reason to be, that they were blocked up and could not take it.”

This is the material testimony bearing upon the defense, that, under the circumstances, the defendant was excused for its failure to perform its contract by delivering the lard in a reasonable time to the next carrier at Detroit. And it appears to us that it is insufficient to establish a legal defense to the action. The defendant was bound to so transport the lard and tender it to the next carrier, that, if the latter wrongfully refused to receive the property, the plaintiffs would have had their action against it for such refusal. It appears that this block at Suspension Bridge had more particular reference to eastern .freight'. And while the^. Great Western might have been unwilling to receive freight consigned to points east of Suspension Bridge, on account of the obstruction at that place, it might have been willing to receive the lard in question, which was only going to Buffalo. The transportation of freight to Buffalo might have been practicable, notwithstanding the accumulation at Suspension Bridge. At all events, the defendant was bound to show a performance of its contract or offer some good excuse for not performing it. liad it transported the lard to Detroit in a reasonable time, according to the usual course of business, and tendered it to the next carrier, it would have discharged its liability. But this it did not do. It is said that the defendant was under no necessity of transporting the rard to Detroit and making a manual tender of it to the next carrier, to excuse itself; that if the Great Western had given notice that it would receive no freight of any kind, a tender of the lard would have been an idle ceremony. Whether the defendant, in order to discharge its duty, would be bound to make a tender of the lard to the Great Western, after having received notice from that company that it would take no more *144freight, is a question not arising upon the facts of this case, and therefore calls for no expression of opinion on our part. It does not appear that the Great Western gave any such notice until the 11th of February, some time after the period when all the lard would have been delivered to that company, had the defendant used proper diligence in transporting it to Detroit. It is true, in the testimony of the agents of the defendant above cited, there are statements to the effect that the witness knew there was a block of freight at the Suspension Bridge, commencing some time in December, 1864. But this alone would not excuse the delay in transporting the property over its own road and tendering it to the next carrier. See the case of the East Tennessee & Georgia R. R. v. Nelson, 1 Coldwell (Tenn.) 272, which is in point upon this question.

We shall not notice in detail the instructions given on the part of the plaintiffs, nor those asked by the defendant, which were refused. The remarks above made are sufficient to dispose of all material questions arising upon the record.

We think the cause was fairly submitted to the jury upon the evidence. .

By the Gov/rt. — The judgment of the circuit court is affirmed.