189 P. 227 | Mont. | 1920
delivered the opinion of the court.
Plaintiff alleges the delivery to defendant railway company on November 18, 1915, of five cars of lambs at Harlowton, Montana, for transportation to Chicago, Illinois, “with stopover at Stoekdale, Illinois, for feeding purposes,” and that defendant for a valuable consideration contracted to make such transportation and to deliver the lambs at their destination over its own line and the line of the Chicago, Rock Island & Pacific Railway Company, and “issued a through waybill therefor, with provisions for such stopover,” all of which was directed by plaintiff at the time of such shipment; that in violation of plaintiff’s orders, and contrary to the provisions of said Waybill, the Chicago, Rock Island & Pacific Railway Company willfully and negligently failed to "stop said sheep at Stoekdale, but carried them through that station to Chicago and forced them on the market in a badly shrunken condition, without any opportunity for plaintiff to finish them for the market or for the sheep to regain the shrinkage by feeding at Stoekdale as contemplated by him at the time of shipment.
The complaint further alleges that it is customary in shipping sheep to the Chicago market from Montana points to stop over at some station near Chicago for feeding, in order to allow such sheep to regain flesh lost by shrinkage and to be finished for the Chicago market; that sheep are commonly fed at Stock-dale for that purpose, and that it was the object of plaintiff in stopping said sheep at said station that they be fed for the purposes above mentioned, all of which was and is known by said railway companies. It is further alleged that the lambs were unloaded in the stockyards at Chicago before plaintiff had any knowledge that they had not been stopped at said station of Stoekdale, and that because such stockyards were in quarantine, it was impossible to withdraw the lambs therefrom for
The answer alleges that the only contract entered into between the plaintiff and the defendant for the shipment of the sheep was one in writing denominated as exhibit “A.” Further answering, the defendant admits that the sheep were not stopped at said feeding station, and that they were carried on directly to the stockyards at Chicago, and alleges that the failure to stop the sheep at said station was at the special instance and request of the plaintiff, his agents, servants, and •employees in charge of the sheep at said time and place, who specifically requested and demanded of the Chicago, Rock Island & Pacific Railway Company, before the sheep arrived at Stockdale, that the sheep should not be stopped at that point, but should pass on directly to the stockyards at Chicago. There are other allegations averring due care in handling the sheep and full compliance with the contract, which, however, in view of the issues presented, it is not necessary to discuss.
The defendant denies the allegations as to the custom in stopping sheep consigned to the Chicago market, at Stockdale, but admits that sheep that are shipped to Chicago for that market •are often fed there. The answer further alleges that, had it not been for the request and demand'of the plaintiff, his agents, servants and employees, upon the Chicago, Rock Island & Pacific Railway Company, the said sheep would have been stopped and unloaded for feeding, and that by reason of such request the plaintiff is now estopped from asserting or making claim for damages by reason of any loss, damage or injury because of the failure to stop the shipment there. The defendant otherwise denies the material allegations of the complaint and further alleges that plaintiff did not present his claim for any
The contract further contained a provision that no claim for loss, injury, or damage to the livestock, nor for delay or decline in the market, should be valid unless presented to the company in writing within four months. This contract was signed by W. T. Hart, agent of the railway company, and by one J.' McD. Hervey, “Person in Charge of Stock”; also “O. B. Parham, Shipper, by R. E. Gruwell.” The only recital in the contract as to the destination of the sheep is the one hereinbefore quoted, and nothing is said concerning stopover privileges at Stockdale. It appears, however, that waybills which were introduced in evidence, issued at Harlowton, contain recitals that the sheep were to be shipped from Harlowton to Farmington, Minnesota, consigned to Walter Dunbar, Chicago, Illinois, care of “C., R. I. & P. Railway Company,” and each thereof contained this clause: “Stop to feed at Stockdale, HI.”
R. E. Gruwell, a witness for the plaintiff, testified that he was the agent who attended to the billing of the shipment, and that the sheep were “delivered to the railway company at Harlowton to be shipped to Chicago; that is, they were billed to Chicago and fed in transit at Stockdale. Such were the directions given by me to the billing clerk at the time. I got my -directions as to the shipment from Mr. Parham.”
Testimony was received as to a custom of stopping at Stockffale for the purposes alleged in the complaint, and also testimony as to the shrinkage and gain in weight as alleged in the pleadings, and as to plaintiff’s damages. The plaintiff, in addition, introduced in evidence the contract, exhibit “A,” attached
After the plaintiff rested, the defendant sought to show by the testimony of George Sehmeling, above referred to, directions purporting to have been given by Hervey to the conductor to the effect that the shipment should not be stopped at Stock-dale. This testimony the court excluded and the defendant then made the following offer of proof:
“Mr. Farr: The defendant now offers to show by the witness on the stand, and that the said witness would testify, that J. McD. Hervey was the person in charge of the shipment of sheep in question from Harlowton, Montana, to Chicago, Illinois ; that he was placed in charge of said sheep by the owner, O. B. Parham, through R. E. Gruwell, agent of the owner; that R. E. Gruwell, at the time of the placing of the said J. McD. Iiervey in charge of the sheep, had express authority from O. B. Parham to place the said Hervey in charge of the sheep; that before the sheep arrived at Stockdale the said J. McD. Hervey was the person in charge of the sheep, and requested and demanded the conductor in charge of the train of the Chicago, Rock Island & Pacific Railway Company not to stop said sheep at Stockdale, but to go on through without stop, to Chicago,” etc.
The defendant also offered to prove by the conductor in charge of the train that Hervey had given directions not to stop the sheep at Stockdale, but to take them on to Chicago. The offer of proof was similar to that made when the witness Sehmeling was on the witness-stand. The offered evidence was
The written contract made at Harlowton does not recite that
The shipment being a through shipment from Harlowton
It is asserted by tbe appellant that, the contract being silent
Section 7887, Revised Codes, subdivision 12: “Evidence may be given upon a trial of the following facts: * * * Usage, to explain the true character of an act, contract or instrument, where such true character is not otherwise plain; but usage is never admissible, except as an instrument of interpretation.”'
Section 7877: “For the proper construction of an instrument, the circumstances under which it was made, including the situation of the subject of the instrument and of the .parties to it, may also be shown, so that the judge be placed in the position of those whose language he is to interpret.’-’
If, as the testimony discloses, it is the custom to stop Montana shipments of stock to Chicago at Stockdale for feeding, the, plaintiff is not attempting to vary the terms of the contract, but to explain and interpret .the intention of the parties.
“Evidence of usage or custom is not considered in the nature of parol evidence to contradict or vary the legal import of a written agreement, but is received for the purpose of ascertaining the intent and understanding of parties, by their contracts,which are made with reference to such usage or custom. The use of such evidence is confined, however, to cases where the. intent is not clearly expressed in the contract, for it is-to be remembered that usage cannot make a contract where there is
“Where a custom does not contradict or is not inconsistent with the terms of a contract, it may be invoked to introduce a new element not expressly employed in' the contract and in reference to which the parties are presumed to have contracted. The reason is that, where there is nothing in a contract to exclude the inference, the parties will be presumed to have contracted in reference to customs and usages prevailing in the particular business and applicable to the contract in question. In other words, a custom or usage, consistent with the terms of the contract, peculiar to the subject matter thereof, known to the parties, and probably intended to be included in the contract, as shown by their situation and purposes, the nature of the subject matter and the attendant circumstances may be shown as an aid to the interpretation of a contract.” (Paragraphs 1706 and 1721, Elliott on Contracts.)
In our view, the waybills are not, strictly speaking, a part of the contract, but,giving effect to section 7877, supra, the plaintiff averring a custom of stopping shipments at Stoekdale for feeding purposes, was entitled to show that such custom existed, for the purpose of showing the real character of the transactions had. Further light is thrown upon the situation by the answer of the defendant, in which it is alleged that “had it not been for the request and demand made by the plaintiff’s shippers, agents, servants, and employees as aforesaid, upon the Chicago, Rock Island & Pacific Railway Company, not to stop said sheep at said station of Stoekdale, Illinois, the said sheep would have been stopped there and unloaded for feeding.”
While the answer elsewhere denies that it was the intention
As to the authority of the person in charge of the stock to
One Weitz, station agent of the Rock Island at Stockdale, and in charge of the stockyards there, whose deposition was taken in behalf of plaintiff, by whom it was offered in evidence, testified: “I received notice that these five carloads of lambs were to stop at Stockdale on that date from my foreman at ■Stockdale. I was afterward told that they were not to feed, and that the man in charge had ordered them to go through. I am not sure from whom I received that information, but think it was from the telegraph operator at Stockdale.”
The plaintiff offered in evidence a letter of W. O. Bunger, general superintendent of freight claims for the Rock Island Railway, which contained this statement: “Furthermore, it appears that the man in charge of shipment requested that the same be forwarded through to destination without unloading at Stockdale, and such being the case you will readily understand this company was in no way responsible for the shipment having passed through Stockdale without having been unloaded.” Mr. Weitz, testifying for the plaintiff, further stated with reference to custom and handling of sheep at Stockdale: “The owner determines whether or not they stop. * * * The owner usually determines how long the sheep shall remain at the feeding station. * * * In the absence of the owner,
On its case, defendant’s witness Dietrick, conductor for the Rock Island, in charge of the train handling this shipment through Stoekdale, testified: “I have handled livestock trains of western livestock from Montana points to the Chicago market off and on for seven years. In most cases in the shipment of stock there is some person in charge of the shipment, and as conductor of the train I receive my instructions and directions as to the handling of the sheep, when the owner is not along, from the man in charge.”
The trial court, as above noted, excluded evidence as to any directions given by Hervey to the conductor concerning stopping the sheep at Stoekdale, upon the ground that he was a mere special agent of the plaintiff, and had no authority to give orders concerning its diversion or handling.
Respondent cites us to the following authorities in support of his contention that the custodian of a shipment is a mere special agent, and has no authority except such as is expressly conferred upon him, and that the carrier is bound, at its peril, to ascertain the extent of his authority: 31 Cyc. 1403; Southern Ry. Co. v. Webb, 143 Ala. 304, 111 Am. St. Rep. 45, 5 Ann. Cas. 97, 39 South. 262; Atchison etc. Ry. v. Watson, 71 Kan. 696, 81 Pac. 499; Lake Shore etc. Ry. Co. v. National Live Stock Bank, 178 Ill. 506, 53 N. E. 326; Ft. Worth & D. Ry. Co. v. Caruthers (Tex. Civ. App.), 157 S. W. 238.
In Southern Ry. Co. v. Webb, supra, plaintiff, the owner of hogs, consigned the same to Atlanta, Georgia. Robinson, his employee, who delivered the hogs to the railway company for shipment, at the time of delivery entered into a contract differing from that made by plaintiff with the railway company, changing their destination and the name of the consignee. It was shown that Robinson’s duties were simply to deliver the hogs to the railway company and that he was without any other authority. The court held he was a mere special agent, and
In Atchison etc. Ry. Co. v. Watson, supra, Watson, the owner of cattle, shipped the same to St. Louis from a point in Kansas, and for damages by reason of a delay in handling the shipment he brought action. It was shown that a son of the plaintiff accompanied the cattle, and, at the time they were loaded upon the cars, signed his father’s name to a printed contract purporting to be that under which the shipment was made, and to supersede any prior agreement. The terms of this written contract precluded a recovery, if the son executed it under such circumstances as to bind the plaintiff. The defendant contended that under the admitted facts the son was the father’s agent for that purpose, or at all events the company was justified in so treating him, and that the court should have so instructed. On appeal the supreme court held the question of authority of the son was for the jury’s determination.
In Lake Shore Ry. Co. v. National Livestock Co., supra, it is merely held that, where a purchasing agent consigns cattle bought by him to his principal, he cannot afterward, while they are in transit, change their destination, nor confer a right to make such change on another.
In the case of Fort Worth & Denver Ry. Co. v. Caruthers, supra, Caruthers had shipped cattle from a point in New Mexico consigned to Fort Worth, Texas. The first carrier conveyed the cattle to Amarillo, and from there they were taken by another carrier to Fort Worth. The owner contended that at the time of shipping the cattle it was agreed that they should be stopped at Amarillo, to await his further instructions before taking them on to Fort Worth, so that he might avail himself of other markets if the Fort Worth market was not satisfactory. It appeared from the evidence that at Amarillo the connecting carrier insisted on taking the cattle forward over the protest of the person in charge of the stockyards; also, that the cattle were in charge of one Davis as caretaker, and that Davis finally signed a new bill of lading for the transportation
In Gulf etc. Ry. Co. v. White (Tex. Civ. App.), 32 S. W. 322, White, the owner of the cattle, shipped the same over the line of the defendant railway company. In his complaint he did not sue on a written contract, but the defendant by answer •alleged that the cattle were shipped under written contracts executed by the plaintiff, acting through certain alleged agents." The plaintiff by reply denied the authority of anyone to execute the contracts referred to. The written contracts pleaded by the defendant were shown to have been executed in plaintiff’s name by certain of his employees sent by him with the shipment of cattle. Plaintiff testified that he sent said employees to take care of the cattle, and that he paid the through rate of freight in advance to the first carrier, and that he gave his employees no authority to sign any contracts. When the cattle reached Fort Worth they were delivered to the defendant rail
It will be observed, from the foregoing, that in each of the cases cited the question of the agent’s authority and whether he acted within its apparent scope was held to be a question for the jury. Here we also have the testimony of Mr. Parham that Hervey accompanied the stock as “shipper.” The trial court adopted the view that Plervey was at most a special agent. We think, however, that it cannot be said as a matter of law that one who accompanies a stock shipment, either as “person in charge of stock” or “shipper,” is necessarily a special agent. Under the federal statutes such person is given express authority to sign a release to the railway company from liability for failure to unload the shipment for rest, etc. By reason of his conduct in contributing to the injury of the stock in his charge, it has likewise been held that the shipper may not recover for injury to the shipment. (Wabash R. Co. v. United States, 178 Fed. 5, 21 Ann. Cas. 819, 101 C. C. A. 133; Atchi
■The trial court refused to give an instruction, tendered by defendant, to the effect that, if Hervey directed the conductor in charge of the train not to stop the shipment at Stockdale, but to go on through to Chicago, the plaintiff should not recover. In our view, upon the testimony cited herein, with no testimony in contradiction, Hervey ostensibly had authority to give such directions. However, if upon a new trial, from the evidence then adduced, it should appear that Hervey’s authority was limited, this fact known to the defendant, or the conditions such that the company should have known he was a mere special agent, with no other authority than to act as a mere attendant, or whether he disobeyed instructions, with knowledge thereof by the railway company, or whether he acted, if at all, within the apparent scope of his authority, are questions of fact for determination by the jury. It is conceded that Mr. Parham himself, if he had accompanied the shipment, cpuld have directed the same to pass through Stock-dale without stopping. Whether his agent or “shipper” has similar authority would ordinarily be a question for the jury.
Error is assigned because the court received in evidence over
It is also contended that the court erroneously stated the law-in other respects as to the measure of damages. However, we think the instruction was not open to either objection.
Specifications of error are assigned upon other instructions,, which we think it not necessary to specifically discuss, as similar questions are disposed of herein.
The judgment and order appealed from are reversed, and the cause remanded for a new trial.
Beversed.