30 Kan. 298 | Kan. | 1883
The opinion of the court was delivered by
This was an action brought by H. V. Beeson against the Missouri Pacific railway company, in the district court of Miami county, Kansas, to recover from the defendant the value of two sacks of wool. The plaintiff al
The defendant, in answer to the plaintiff’s petition, admitted that it was a common carrier of goods from the city of Paola, Kansas, to the city of St. Louis, Missouri; denied that it ever agreed to carry said wool to the city of Philadelphia, or to deliver it to the consignees; but admitted that on October 20, 1881, the plaintiff delivered to the agent of the defendant, at Paola, Kansas, eighty-one sacks of wool, and that the defendant agreed to carry the wool from Paola, Kansas, to its station at St. Louis, Missouri, the terminus of its road, and there deliver the same to some responsible carrier on the route from St. Louis to Philadelphia. The defendant further alleged that it performed all things which it had agreed to perform; and it attached copies of the bills of lading for the wool to its answer, and made them a part thereof. The bills of lading mentioned in the defendant’s answer were receipts for the wool, signed by the agent of the defendant only, and showed that the wool was to be carried from Paola, Kansas, to “St. Louis station,” and showed that the consignees were W. C. Houston, jr., & Co., Philadelphia, Pennsylvania.
The plaintiff, in reply to defendant’s answer, denied each and all matters set forth therein which were inconsistent with the allegations of his petition. • Judgment was rendered in iavor of the plaintiff and against the defendant for the sum of $198.25, the value of the two sacks of wool, and costs. This judgment the defendant now seeks to have reversed by this court;
About the only contested question of fact in the case is,
We think there can be but little dispute about these facts. Prior to the time of making the contract, the plaintiff asked an agent of the defendant what he would charge him for carrying wool “ to Philadelphia on a through bill of freight.” The agent answered that he would have to telegraph to St. Louis. Afterward the agent handed the plaintiff a paper showing the rate at which they would carry wool from Paola to Philadelphia. There was nothing said about carrying the wool to St. Louis, or about the price of carrying the wool to St. Louis, or about the price from St. Louis to Philadelphia, or about St. Louis being the terminus of the defendant’s railroad ; and there is nothing in the record that shows that the plaintiff knew at the time where the defendant’s railroad did
As before stated, the wool was delivered by the plaintiff to the defendant on the original parol contract, and upon a contract to pay a particular price per hundred for carrying it, from Paola to Philadelphia. Now if these bills of lading which were afterward handed by the agent of the defendant to the plaintiff were to supersede the original contract, then what was the plaintiff to pay the defendant for carrying the wool from Paola to “St. Louis”? Certainly not the original contract price, for the wool was to be carried through to Philadelphia for such price; and certainly not the schedule price, or what might afterward be found to be a reasonable price, for there was a special contract as to what the price should be. The plaintiff testified that there was a rate agreed upon from Paola to Philadelphia, and the company admitted the same by refunding the overcharge collected at Philadelphia.
We think it is clear from the evidence and the findings of the jury, that there was an original parol contract to carry the wool from Paola to Philadelphia at a settled price, before the wool was delivered under such contract, and before any bills of lading were made out or delivered to the plaintiff, and that
Upon this view of the case, we think the plaintiff is entitled to recover. We have examined the authorities cited by the plaintiff in error, defendant below, and do not think that any of them conflict with this view, while the- cases of A. M. U. Ex. Co. v. Schier, 53 Ill. 140, and Rld. Co. v. Manu’g Co., 83 U. S. (16 Wall.) 319, are in harmony with this view. Of course bills of lading are prima facie evidence of what the contract was between the parties, and it devolved upon the plaintiff to ■.show that the contract apparently shown by the bills of lading was not the contract upon which the wool was delivered -.to the defendant for transportation. If no previous contract had been made between the parties, the bills of lading would be conclusive evidence as to the character of the contract between the parties. And possibly, if the defendant or its agents had called the attention of the plaintiff to the particular words in the bill of lading showing that the wool was to be carried to “St. Louis station,” or if the plaintiff at the ‘time of receiving the bills of lading had read the same and ■made no objection thereto, the bills of lading might be considered as conclusive evidence of the character and extent of the contract between the parties. But a bill of lading signed 'by one party only, read by one party only, and understood by -one party only, can hardly be held to overturn and destroy a previous contract entered into by and between both the parties, when the original contract has been principally executed :and fulfilled on the part of one of the parties, and by. that one who did not understand the contents of the bill of lading, and who is to suffer if the original contract is to be con
We think there are no other questions which require comment in detail.
The judgment of the court below will be affirmed.
