88 Ill. 136 | Ill. | 1878
delivered the opinion of the Court:
It is alleged in the declaration, that the plaintiff delivered to the defendant one case of goods or saddlery, of the value of $400, to be carried by the defendant from New York to Bloomington, and in consideration thereof, and the reward to be paid by the plaintiff, the defendant faithfully promised to take care of said goods and carry the same to Bloomington, and there deliver the same to the plaintiff. The breach is in the usual form.
The bill of lading, in evidence, acknowledges the receipt of the goods from the consignors in good order, in New York, addressed to the plaintiff at Bloomington, but contains this clause: “ To be forwarded in like good order, (damages of navigation, collisions and fire, and loss occasioned by mob, riot, insurrection or rebellion, and all dangers incident to railroad transportation, excepted,) to Chicago depot only, he or they paying freight and charges for the same as below.”
H. W. Coon testifies, that he was the agent of the defendant at New York, at the time the goods in controversy were shipped ; that the only contract for the transportation of the goods was that contained in the bill of lading; that he gave the consignors the bill of lading upon the receipt of the goods; that the consignors were frequent shippers of goods by defendant’s line, and generally took similar bills of lading; that he had no conversation whatever with any one shipping the • goods, and did not then, or at any other time, agree that the goods should be transported to any other place than Chicago, and that he had no authority to make such an agreement. This evidence does not appear to be- contradicted. Accepting this as true, as we must, the presumption that would otherwise have existed of a contract to carry to Bloomington, from the acceptance of the goods for transportation marked to that point, is overcome by the evidence of an express contract to carry to the Chicago depot only. We must presume, from the fact that the consignors were frequent shippers by this line, and in the habit of receiving like bills of lading, that they were familiar with its contents, and hence, when they accepted it, knew that it obligated the defendant only to ship to the Chicago depot.
It is shown the goods were promptly shipped to the Chicago depot, and there, late in the evening, taken from the car in which they were shipped, and placed in the defendant’s warehouse,. a safe and secure place of storage, and on the following .morning they were destroyed by the memorable fire in that city of October the 9th, 1871.
There can, therefore, be no recovery against the defendant, as carrier. Merchants’ Dispatch Trans. Co. v. Hallock, 64 Ill. 284; Illinois Central R. R. Co. v. Friend, id. 303; Cahn et al. v. Michigan Central R. R. Co. 71 id. 96.
In the view we have taken of the evidence, the judgment must be reversed and the cause remanded.
Judgment reversed.
