23 Wis. 138 | Wis. | 1868
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
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
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.