191 Mass. 449 | Mass. | 1906
The contract of the defendant in the case at bar was to deliver the cases in question to L. Singer, Springfield, Illinois, without requiring the production of a receipt or bill of lading.
By accepting the receipt, which states the conditions upon which the property is received, the plaintiff accepted those terms as part of the contract. Grace v. Adams, 100 Mass. 505. Hoadley v. Northern Transportation Co. 115 Mass. 304. Fonseca v. Cunard Steamship Co. 153 Mass. 553. The receipt in question states on its face that these conditions are to be found on the back. Such a receipt comes within that rule. See in this connection Pemberton Co. v. New York Central Railroad, 104 Mass. 144 ; Doyle v. Fitchburg Railroad, 166 Mass. 492. By force of this contract between the parties the case at bar is brought within the rule applied on proof of custom in Forbes v. Boston & Lowell Railroad, 133 Mass. 154.
The defendant performed this contract by delivering the goods to L. Singer, Springfield, Illinois.
Whether the consignor in the case at bar meant L. Singer of Boston, Massachusetts, or L. Singer of Springfield, Illinois, is not material. What a consignor in fact means if not communicated to the carrier is not material. The rights of the parties'
It is agreed that the Lena Singer to whom the goods were delivered was before and at the time in question doing business in Springfield, Illinois, under the name of L. Singer, and was so known to the defendant’s representatives in Springfield; also that she had been receiving goods over the defendant’s line “ nearly every week, addressed to L. Singer,” and that “ these cases were marked and billed in the same manner as other goods received at Springfield for said Lena Singer.” It does not appear that there was any other L. Singer in Springfield.
Under these circumstances we see no ground for saying that the defendant did not follow the instructions given to him in delivering the goods to Lena Singer.
We cannot accede to the plaintiff’s argument that because the defendant’s agent in Boston had notice of the name of the consignor and consignee being the same he had notice that the goods were to be delivered to the consignor and therefore that L. Singer, Springfield, Illinois, meant L. Singer of Boston. If any inference ought to have been drawn from this fact we think it was that L. Singer of Springfield was the consignor acting through an agent in making the consignment.
Neither is it material that “ the plaintiff had been doing business in Boston for eleven years, and had been sending goods to Springfield, Illinois, for about five years previous to November 21, 1900, about six or seven times a year to the same Guralnik, and had always sent his goods addressed in the same way, namely, L. Singer, Springfield, 111., and through the defendant company, and he never had any trouble before this time.” The defendant’s agent in Springfield was not bound to remember and was not chargeable with knowledge of these facts. See in this connection Raphael v. Bank of England, 17 C. B. 161; Vermilye v. Adams Express Co. 21 Wall. 138; Seybel v. National Currency Bank, 54 N. Y. 288, where it is held that previous notice of loss to a subsequent purchaser of a negotiable security does not charge him with knowledge of the facts stated in the notice. Whether this is the law in Massachusetts
The issues of negligence on the part of the plaintiff and on the part of the defendant, on which the judge below tried the case, were not the issues on which the rights of the parties in the case at bar depend. Where the instructions as to delivery are doubtful under the circumstances known to the carrier, he is put on his inquiry, and the question of negligence arises. But the instructions here were not doubtful under the circumstances known to the defendant. The judge in the court below apparently acted on Samuel v. Cheney, 135 Mass. 278. There was ground for arguing that the instructions there were doubtful under the circumstances known to the carrier. It is to be observed that the charge to the jury in that case was held to have been “ sufficiently favorable to the plaintiff ”; it was not held to have been correct.
The conclusion to which we have come is supported by Dunbar v. Boston Providence Railroad, 110 Mass. 26 ; Samuel v. Cheney, 135 Mass. 278; M’Kean v. M’Ivor, L. R. 6 Ex. 36; Stimson v. Jackson, 58 N. H. 138 ; Conley v. Canadian Pacific Railway, 32 Ont. 258; The Drew, 15 Fed. Rep. 826; Nebraska Meal Mills v. St. Louis Southwestern Railway, 64 Ark. 169.
The plaintiff evidently intended to make the goods shipped security for his draft for the unpaid balance of the purchase money due him. To do that he should have had the goods billed to his own order and then indorsed the bill of lading to the bank discounting his draft. By mistake he billed the goods “ straight ” and is now seeking to make the defendant liable for his own blunder.
In the opinion of a majority of the court the entry must be'
Exceptions sustained.
