159 Mass. 133 | Mass. | 1893
The plaintiff is the second in a line of three connecting railroads over which the ice was transported, and the freight due to the first two roads has been paid by the last. We assume, without deciding it, that the right of the plaintiff to maintain this action is the same as if it were the first road, and the freight had not been paid. With whom, then, did the Boston and Maine Railroad make the contract for transportation, and who promised that company to pay the freight ? There was no express contract. The defendants, through their servants, might have contracted with the railroad to pay the freight, although as between themselves and Merrick he was bound to
From the agreed facts, it appears that the title to the ice passed to Merrick when it was put on board the car, and that it was transported at his risk. The doctrine of the courts of the United States seems to be that the property in goods shipped is presumably in the consignee, although this presumption may be rebutted by proof. Lawrence v. Minturn, 17 How. 100. Blum v. The Caddo, 1 Woods, 64. In Dicey on Parties to Actions, 87, 88, the result of the English decisions is stated to be as follows : “ The contract for carriage is, in the absence of any express agreement, presumed to be between the carrier and the person at whose risk the goods are carried, i. e. the person whose goods they are and who would suffer if the goods were lost. . . . When, therefore, goods are sent to a person who has purchased them, or are shipped under a bill of lading by a person’s order, and on his account, the consignee, as being the person at whose risk the goods are, is considered the person with whom the contract is made. He is liable to pay for the carriage, and is the proper person to sue the carrier for a breach of contract.” And on page 90, n., “ Where the consignor acts as agent of the consignee, but contracts in his own name, it would appear that either the consignor or the consignee may sue.” Dawes v. Peck, 8 T. R. 330. Domett v. Beckford, 5 B. & Ad. 521. Coombs v. Bristol & Exeter Railway, 3 H. & N. 1. Sargent v. Morris, 3 B. & Ald. 277. Dunlop v. Lambert, 6 Cl. & Fin. 600. Great Western Railway v. Bagge, 15 Q. B. D. 625. Cork Distilleries Co. v. Great Southern & Western Railway, L. R. 7 H. L. 269. The cases generally are collected in Hutchinson on Carriers, §§ 448 et seq., 720 et seq. Most of the English cases were reviewed in Blanchard v. Page, 8 Gray, 281. That was a case of the carriage of goods by sea under a bill of lading, and it was held that the bill of lading was a contract between the shipper and the ship-owner, and that, although it was shown that the shipper acted as agent of the consignees, who had bought and
The strongest case for the plaintiff is Finn v. Western Railroad, 102 Mass. 283, which was upon an implied contract. In that case, one Clark had ordered shingles of Finn, who shipped them on his own account, under a bill of lading, on boai-d a canal boat, to be delivered to “ the Great Western Railroad Company, or their assignees at Greenbush, N. Y. Consignee to pay freight on the delivery.” The shingles arrived by boat at the freight station of the railroad company at Greenbush, R. Y., and were described in the bill of lading as marked “ J. S. C. extra,” or “ J. S. C.” They were intended to be transported to Joseph S. Clark, Southampton, Mass., and were burned while in the freight-house by an accidental fire. Clark accepted and paid a draft drawn by Finn for the shingles, and, in a suit by Finn against him, pleaded the amount of the draft in set-off, and recovered the amount, on the ground that “ the omission of the plaintiff [Finn] to forward the goods with proper directions as to the consignee and the place of delivery authorized the defendant [Clark] to treat the alleged sale as one never perfected, and to recover back the money paid upon the draft.” Finn v. Clark, 10 Allen, 479; S. C. 12 Allen, 522. Finn then brought suit against the railroad company for its failure to forward and deliver the shingles to Clark. It was held that, although the case of Finn against Clark settled the fact that as between them the title to the property remained in Finn, yet the railroad company, not being a party to that suit, could not set up the judgment in it “ as an estoppel against
In the present case there was no bill of lading or receipt signed by the railroad company and accepted by the defendants. There was a way-bill, but it does not appear that the names of the defendants were in it. The freight charges were made in every instance to Merrick, the consignee, and the bills for freight were sent to him. These facts, and perhaps some others stated in the agreed facts, afford some evidence that the railroad company understood that Merrick was to pay the freight to the company. Upon an agreed statement of facts this court cannot draw inferences of fact, unless they are necessary inferences. Old Colony Railroad v. Wilder, 137 Mass. 536. The agreed facts in this case, we think, contain some evidence that the understanding of all the parties was that Merrick should pay the freight to the railroad company, and we cannot hold, as matter of law, that the defendants made a contract on their own behalf to pay the freight. Judgment affirmed.