Sisson v. Cleveland & Toledo Railroad, 14 Mich. 489

Sisson v. Cleveland & Toledo Railroad

14 Mich. 489 | Mich. | 1866

Cooley J.

The Circuit Judge erred in charging that the action could not be brought in the name of the plaintiffs, but should have been in that of John L. Perkins. The written contract was made with these plaintiffs, and a court of law can only look at the promissors and promissees as the parties in legal interest, and is not at liberty to govern its action by questions of equitable right. — Litchfield v. Garratt, 10 Mich. 426; United States v. Parmele, 1 Paine, C. C. Rep. 252. The case is analogous to that where an agent enters into a written contract for his principal in his own name, and which the principal must enforce in the name of the nominal contracting party.- — Newcomb v. Clark, 1 Denio, 226. The assignment of the contract to the party in interest would not affect this rule. The Court would take notice of the assignment for the purpose of protecting the interest of the assignee; but the assignment of a non-negotiable demand does not, at the common law, entitle the assignee to pursue remedies in his own name upon the contract. The statute which allows it — Laws of 1863, p. 102— is only permissive in its provisions, and the assignee is still at liberty to sue in the name of the contracting party.

We think the Judge also erred in excluding evidence of the conductor’s statements as to the capacity of the engine. The statements offered to be shown were made while the conductor was engaged in the business of the defendants, iu respect to the contract in question, and had control of the train, and they related to the delay complained of, which was the res gestae of the case. See Baring v. Clark, 19 Pick. 220; Price v. Marsh, 1 C. & P. 60; Peyton v. The Governor of St. Thomas Hospital, 3 C. & P. 363. The defendants would not be absolutely bound by such statements, but they are admissible evi*497dence on general principles of agency. — Dunlap’s Paley on Agency, 272, et. seq. and notes.

The question put to the witness Perlrins, whether he could form an opinion, from the appearance, as to the capacity of the engine to draw the train, might have been proper for the purpose of showing him to be an expert; but as it does not appear to have been ¡jut by the plaintiffs on this ground, we cannot say that it was improperly overruled. The fact sought to be proved was one to which none but an expert could, from mere appearance, testify; and it does not appear to have been claimed that Perkins was an expert. '

We also think that the court erred in excluding evidence of the state of tlie markets as derived from the market reports in' the newspapers. The precise question involved does not appear to have been passed upon by the courts; but we are aware of no reason and no authority which would exclude the evidence. In Lush v. Druse, 4 Wend. 317, the value of wheat at a certain point was allowed to be proved by a witness who had derived his knowledge solely from the books of large dealers in wheat at that place; and in Re Fennerstein’s Champagne, recently decided by the Supreme Court of the United States—5 Am. Law Reg. N. S. 464—the market value of articles of merchandise at a particular place in a foreign country was held provable by letters written by third persons abroad, in the ordinary course of business, to other third persons, offering to sell at specified rates. The principle which supports these cases will allow the market reports of such newspapers as the commercial world rely upon, to be given in evidence. As a matter of fact, such reports, which are based upon a general survey of the whole market, and are constantly received and acted upon by dealers, are far more satisfactory and reliable than individual entries, or individual sales or inquiries; and courts would justly be the subject of ridicule, if they should deliberately shut their eyes to the sources of information which the rest of the world relies upon, and demand evidence of a less certain and satisfactory character.

*498We do not perceive the importance of the evidence introduced by the defendants as to which of the railroad companies should have furnished the cars to continue the transportation from Cleveland. The companies had jointly undertaken to transport the cattle to Buffalo; and they were jointly liable for a failure to fulfill the contract. The plaintiff had no com cern with the arrangements of the defendants among themselves, and no right in any way to control them. It was not competent for them to make any rules, or to enter into any arrangements, or to enforce any previously made, which would npodify the contract entered into with the plaintiffs; and proof that one of the defendants, instead of another, was th.e cause of the injury complained of, is wholly immaterial in a suit against all. If the plaintiffs could be held bound to know what the course of the companies was as to furnishing cars, they would still have th'e right to suppose that the company who was to furnish them would do so without unnecessary delay, inasmuch as all had entered into a joint contract which would require it.

The contract of the defendants was to transport the cattle from Toledo to Buffalo. Their ultimate destination was Albany or New York, but this fact was not stated in the contract, and the court charged the jury that the plaintiffs could not recover damages for loss by depreciation of cattle in the market, except at Buffalo. If the Judge meant the jury to understand by this charge, that the damages which plaintiffs could recover must be confined to the fall in the market at Buffalo, between the time when the cattle should have reached that point, and that of their actual arrival, we think he erred. The defendants were informed when they entered into the contract that the ultimate destination was to an Albany or a New York market; and they must be held to have assumed their obligations in reference to that fact. If in fact there was no fall in prices before the cattle had reached Buffalo, but afterwards, and before they could be delivered at Albany, a loss had occured as the direct consequence of defend*499ants’ delay, it would be both illogical and unjust to hold that defendants shall be discharged, because the injurious consequences of their act did not result until the cattle were out of their own hands. The consequences of delay would attend the cattle to their final destination, just as the consequences of a fatal injury to one of them would attend the animal until his death; and in-neither case could the party responsible excuse himself by showing that the actual loss, or the death, did not occur while the property was retained in his possession.

We are referred to several authorities which are supposed to hold that a fall in market value cannot be recovered by way of damages. The first of these is Smith v. Griffith, 3 Hill, 333, where it was held that the damages recoverable against carriers for the negligent loss or injury of goods entrusted to them for transportation are to be ascertained by resorting to the price which goods of the same kind and quality bore in market at the time the injury occurred; and not to the price at a subsequent period. The decision has obviously no bearing upon the question before us, but is based upon the principle that when a party is deprived of his property by the wrongful act of another, he should be compensated with such damages as would at the time enable him to procure a similar article of equal value in the market. The question in Conger v. The Hudson River Railroad Co. 6 Duer, 375, was whether the shipper could recover from the carrier damages occasioned by a loss of market through delay; and the court intimated that such damages are too speculative in their character to form the basis of legal action. The only case in point is that of Wiber v. The New York and Erie R. R. Co. 19 Barb. 36, where it was held, in an action against a carrier for failure to deliver butter in a reasonable time, that the difference between the value of butter at the time it should have been delivered, and its value at the time of actual delivery could not be recovered as damages, because the loss was not the actual and proximate result of the act complained of. The reasoning of the court is, that the fall in price was n.ot in consequence of the delay, *500and, therefore, the carrier was not liable for the resulting loss. It is to be regretted that this point was not passed upon by the Court of Appeals when the case reached that tribunal,— 2 Kern. 245 — , as the case seems to us to lay down a rule of damages wholly unwarranted by reason or authority. To apply a similar principle to other cases, we should be required to hold that one who had unroofed the house of another, in consequence of which it became deluged with rain, would not be liable for the damages, because unroofing the building did not cause the rain. There is a great deal of refining in the case as to what are natural and proximate causes of damage; but refinement of reasoning that goes to the extent of shocking the common understanding cannot possibly establish good law. All legal damages result from the action of the party in fault, in connection with existing circumstances; and to exclude proof of those circumstances, because they were not caused by the wrongful act, would deprive the injured party in many cases of all remedy. If a loss by depreciation in the market is not a necessary and proximate result of delay in transportation, it is difficult to conceive of any rule by which a carrier can be made to compensate the party injured.

The defendants claim in this Court that the action cannot be sustained in any event, because, by the express terms of the contract, they are not to be liable for delays. iy"e do not so read the contract. It provides that Sisson & Perkins “ does hereby agree to take, and hereby does assume, all and every risk of injuries which the animals or either of them may receive in consequence of any of them being wild, unruly, vicious, weak, escaping, maiming or killing themselves or each other, or from delays,” &c., “ and risk of any loss or damage which may be sustained by reason of any delay, or from any other cause or thing in, or incident to, or from or in the loading or unloading the stock.” As we read this agreement, it refers to loss or damage to the party by reason of injuries to the stock, caused by delay, &c., upon the cars, and to loss or damage by reason of delay in loading or unloading; and has no reference *501to other losses which the delays of the carriers may cause to the shipper. There are good reasons for an agreement of this description growing out of the manner in which cattle are usually transported; the owner or his agent accompanying and taking charge of them, and being on hand to prevent injuries of the kinds specified, while no care of the owner could prevent other delays, o.r protect against losses which might follow incidentally from other delays. The stipulation appears to us carefully worded to cover such injuries 'and losses as the owner might guard against, while it studiously avoids including losses like the one complained of here.

The judgment must be reversed, with costs, and a new trial ordered.

The other Justices concurred.