74 Mo. App. 48 | Mo. Ct. App. | 1895
Lead Opinion
— The present action is for damages in which plaintiff had judgment below.
Plaintiff’s action is based on the sections of the statute aforesaid, he claiming damages thereunder for the injury done him by the alleged wrongful act of defendants in issuing the bill of lading without having the grain shipped aboard the ears. There was evidence
The foregoing cases relate to masters of vessels; but it has been held to apply, with even more force, to bills issued by freight agents for railroad companies— .such agents having, generally, less power than the masters of vessels. R'y v. Wilkins, 44 Md. 23, 26; R'y v. Knight, 122 U. S. 87.
The ground upon which these decisions rest is not ■only that the masters of vessels and freight agents of railway companies have no authority to bind their
2. Notwithstanding the high character of the-courts, including as before stated our own supreme court, which have so decided the question, there are a number of adjudications to the contrary. These cases-do not expressly disapprove of the reasoning found in the cases which w© have cited, but the jurists who-have taken the opposing view find a theory upon which to base their conclusions, which, when stated in its full breadth, is that at this day in the light of commercial usage, railway companies must be held to-
In pases like the one in hand the agent has the power to issue a bill of lading when • the goods are actually received for shipment. The extrinsic fact of the receipt of goods by him is the authority upon which his power depends. The knowledge whether the goods have been received by him, and thus the power conferred lies peculiarly with him. His representation as to the existence of this .important fact ought to bind the principal for the simple reason, if nothing more, that the principal has placed him in his agency for the purpose of making a representation as to this fact. The principal knows too, that bills of lading fall into the hands of innocent parties in the course of daily commercial transactions at a great distance from the place of shipment who, while knowing that they, should only be issued on receipt of the goods, yet must necessarily depend upon the statement of the agent therein, who has knowledge of the fact as to such receipt. The principal may be innocent. The purchaser of the bill of lading relying upon its statement of the receipt of the goods certainly is. So, therefore, “whenever one of two innocent parties must suffer by the acts of a third, he who has enabled such third person to occasion the loss must sustain it.”
We, however, deem it proper to say that if the necessities of this case required us to adopt either of the foregoing views we should feel compelled to follow (though, we concede, unwillingly) the view set forth in the first division of this opinion, for the reason that it
In Bank v. Laveille, 52 Mo. 380, referred to above, attention was not directed to the view of the case which we have last discussed. Nor was our statute, sections 744, 745, regarding the negotiability of such bills referred to. We need not here undertake to construe those sections, neither need we say what attributes, if any, which belong to bills of exchange and promissory notes as commercial paper, attach by reason of this statute to a bill of lading. We have entered upon an examination of the two antagonistic holdings on this important question in order that we might ascertain the reasons upon which they are respectively based, to the end that we may arrive at a satisfactory disposition of the case at bar under the facts surrounding it, especially as those facts relate to the corporation defendant.
Now we consider the act of defendant’s general agent here as the act of the defendant corporation itself. A corporation has agents; indeed, from its composition, can only act through agents. These agents are frequently such in the ordinary acceptation of the word; they are also frequently ex necessitate rei, the corporation itself. McGinnis v. R’y, 21 Mo. App. 408. Mr. Street was the general commercial agent of defendant, in charge of a vast amount of territory over which, and from which, the defendant drew freight. He was in charge and had supervisory control of the defendant’s business in this respect. He was pro Me vice, the defendant itself. Such we believe was the opinion of the supreme court of the United States as expressed in Pollard, v. Vinton, 105 U. S. 7, though that ease did not involve this point. This view is in keeping with the evident intent and object of the statute which contemplates that such irregular bills of lading may be issued by corporations through their agents and its object is to give a remedy to him who may be injured ■ thereby.
Concurrence Opinion
(concurring.) — While concurring in the foregoing opinion of Judge Ellison, I yet feel doubtful as to whether or not the conclusion reached can be harmonized with Bank v. Laveille, 52 Mo. 380. In order, then, that a question so important to our commercial interests may be settled in this state, I have concluded to ask that the case be certified to the supreme court.