Peet v. Chicago & North-Western Railway Co.

| Wis. | Jan 15, 1865

Lead Opinion

By the Court,

Cole, J.

The main object of this action is, to recover damages against the railroad company for delay in carrying a certain quantity of flour to New York city. The appellant is a manufacturer of flour at Neenah, Wisconsin, and delivered to the company at that place the flour, taking therefor a receipt or contract which reads as follows:

“ Chicago & Northwestern Nailway, Charles S. Tappan, general freight agent, Chicago, January 16th, 1862. Ne-ceived (as agents and forwarders) from E. W. Peet, the following packages (contents unknown) in apparent good order, viz: Marked — Acct. of Bank of Neenah, care of Jesse Hoyt & Co., New York. Care of Chas. -S. Tappan, Gen. Agent, Chicago. Articles — One hundred barrels flour, round hoop, Harmony mills. Contract from Neenah to New Yorh at $2.25 per 1M. J. H. Smith, agent.”

It appears from the evidence and stipulations filed in the case, that the flour was transported by the company over its line of road from Neenah to its terminus at Chicago, and was forwarded from there by tbe company witbin a reasonable time by one of tbe usual routes, but failed to reach its destination in time in consequence of tbe accumulation of freight at a point east of Chicago. And tbe only question which we shall consider is, whether the company discharged its liability when it transported tbe flour over its road to Chicago and forwarded it from that place within a reasonable time by one of the usual routes, or whether the above receipt shows an express contract on the part of the company to carry the flour to New York. The court below held that the obligation imposed by the contract was merely to transport the flour safely and seasonably to the city of Chicago, the end of defendant’s road, and there deliver it to a proper carrier to be forwarded to its destination; and that when the company had done this it had discharged its full duty in the premises.

There is considerable conflict of authority upon the point as to what measure of responsibility a railroad company assumes which receives goods marked to some place beyond its route. The English courts have decided that when a railway company take into their care a parcel directed to a particular place, and do not by positive agreement limit their responsibility to a part only of the distance, that is prima facie evidence of an undertaking to carry the parcel to the place to which it is directed, although that place be beyond the route of the company. The weight of American authority is certainly opposed to this doctrine, holding that the company which receives the goods assumes no responsibility as carrier beyond the terminus of its road unless there is a special contract, or some usage of business which shows that such company takes the goods for the" whole route. Most of the cases upon this branch of law will be found in note (K), 1 Parsons on Con., p. 687 (4th ed.). See likewise Rome Railroad Co. v. Sullivan et al., 25 Geo., 228. It is believed, however, that a discussion of the question as to which is the more salutary and reasonable rule upon this subject is not necessary for the purposes of this case, since the authorities are quite uniform that if the company receiving the goods contract as carrier for the whole line, then it is liable for any injury or loss that may happen to them beyond the limits of its road and while under the control of other carriers. And a majority of the court think that the receipt in this case contains an express undertaking on the part of the defendant to carry the hour beyond the terminus of its road to its destination, New York city. It will be seen that the receipt contains these words: “ Contract from Neenah to New York at $2.25 per bbl.' We fully adopt the interpretation placed upon these words by the counsel for the appellant, and think if the contract were written out in full it would read : “ The railway company contracts to carry this 100 bbls. of flour from Neenah to New York, and there deliver them to the consignees, for $2.25 per barrel.” It seems to a majority of the court that this is the natural and reasonable construction to be placed upon these words, and that they show an express undertaking on the. part of the defendant'to carry the flour to New York. If so, there can be no doubt that the company is liable for any loss occasioned by negligence and inexcusable delay in transporting the flour to its destination, in whatever part of the line it may have occurred. Noyes v. R. & B. R. Co., 27 Vermont, 110; Wilcox v. Parmelee, 3 Sandf. (S. C.), 610; Perkins v. P. S. & Portsmouth R. R. Co., 47 Maine, 573; Penn. Cent. R.R. Co. v. Schwarzenberger, 45 Pa. St., 208.

It is claimed, however, that this construction of this language is inadmissible, and that it was used merely for the purpose of fixing the freight charges of all the companies between Neenah and New York, so that in no event should they exceed $2.25 per barrel, and that this intention is the more evident from the words “received (as agents and forwarders),” which are used in the first part of the receipt. The counsel for the appellant forcibly presented the obvious difficulties in the way of adopting this construction of the receipt. He suggests that if the intention was to fix the price of transportation to New York, tbe natural and proper words would have been: “freight from Neenab to New York not to exceed $2.25 per barrel.” But instead of tbis tbe freight is fixed at a given amount, and then a meaning has to be given tbe language different from what it imports simply on its face. Furthermore, if tbis theory is correct and such controlling effect is given to tbe first clause of tbe receipt, “ received (as agents and forwarders),” then it would relieve tbe company from all liability as carriers, and impose upon it merely tbe duty of forwarder from Neenab. And finally, tbe first part of tbe receipt is printed, while the words “ contract from Neenab to New York at $2.25 per bbl.,” are written, and therefore tbe written portion must prevail over tbe printed part, if there is any conflict in tbe language. No satisfactory answer was given to these objections, and they show that the exposition of tbe receipt contended for by tbe counsel for tbe company is not a fair and legitimate one. We think tbe more natural and rational construction is, that tbe receipt contains an express undertaking on tbe part of tbe company to transport the flour to New York, and imposes upon it tbe responsibility of a carrier for tbe whole route.

We think, therefore, there must be a new trial. Of course we shall not be understood as expressing any opinion upon the other points made upon the briefs of counsel.

Judgment of tbe circuit court reversed, and a new trial ordered. .

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Dissenting Opinion

DowNER, J.

I dissent from tbe opinion of tbe majority of tbe court in tbis case, and bold:

1st. That tbe receipt or contract in evidence, taken in connection with tbe evidence at tbe trial, is not a contract on tbe part of tbe- defendant as common carrier to carry the flour from Neenah to New York.

2d. That tbe defendant undertook only to transport tbe flour to Chicago, tbe terminus of its own road, and there to forward it, and to fix the freight which should be charged by all the roads from Neenah to New York.

3d. That, unless the defendant has greater powers than are ordinarily conferred on railroad corporations, it had not the power to make a valid contract, binding it as a common carrier to transport goods from Neenah to the city of New York. And on this point I refer to the dissenting opinion of Sutherland, J., in the case of Burtis v. The Buffalo and S. Line R. R. Co., 24 N. Y. (10 Smith), 274, and authorities there cited.