50 Neb. 452 | Neb. | 1897
This was an action against the Union Pacific Railway Company for failure to convey and deliver certain goods consigned by Metcalf & Wood from York, Nebraska, to McCourtie, Hill & Co., at Chicago, Illinois. As several questions arise out of averments in the petition, we quote a portion thereof:
“Metcalf & Wood and James ' H. Wood, Surviving Member oe the Said Firm, Plaintiffs,
v.
Union Pacific Railroad Company, Defendant.
“Plaintiff for cause of action against the defendant alleges that this plaintiff, Metcalf & Wood, is a firm of persons composed of Lafayette Metcalf and James II. Wood, formed for the purpose of doing business in this state and not incorporated, and doing business in York, York county, Nebraska, in the name and style of Metcalf & Wood.
“2. Defendant is a corporation duly incorporated by act of congress of the United States.
“3. Said defendant, at the times thereinafter mentioned, was and still is a common carrier of goods and chattels for hire from York, York county, Nebraska, to Chicago, in the state of Illinois.
“4. On or about the 1st day of December, 1891, the plaintiff delivered to the defendant one car load of flax-seed at York, Nebraska, containing one thousand bushels of flax, to be safely and securely conveyed by said defendant from said York, Nebraska, to said Chicago, in the*456 state of Illinois, and the defendant then and there undertook and agreed, for a certain reward to be paid by the plaintiff to the said defendant, to so safely and securely deliver the said flaxseed to McCourtie, Hill & Co., at the city of Chicago and state of Illinois.
“5. The said defendant did not safely convey and deliver the said flax as it had undertaken to do, but, on the contrary, conducted itself so negligently in and about carrying and transporting the same that on the line of the defendant’s railroad between said York and Chicago five hundred bushels of said flaxseed, which was of the value of ninety-two cents per bushel, was wholly lost to the plaintiff, to the plaintiff’s damage in the sum of $460.”
This was followed by a second count, in similar language, averring the shipment and failure to deliver of a car load of shelled corn. The verdict having been in favor of the defendant, which is here the complaining party, on the second count of the petition, it is unnecessary to set it out or further consider it. The defendant demurred to each cause of action. The demurrers were overruled, and the defendant then answered denying seriatim the averments of the petition, including the alleged partnership. Further, the defendant averred “that said flaxseed and corn * *' * was delivered to and received by said defendant and placed in the cars of the defendant for McCourtie, Hill & Co. of Chicago, and that the same was safely conveyed and delivered to the said McCourtie, Hill & Co. in the city of Chicago, in the state of Illinois, without any negligence or want of care on the part of the defendant in respect thereto.” In addition to this, it was alleged that the action was one arising under the constitution and laws of the United States, the goods being received in accordance with two certain bills of lading at York, Nebraska, to be carried to Council Bluffs, Iowa, the terminus of defendant’s line, under the agreement that the responsibility of defendant as a common carrier should cease at Council Bluffs, and that said goods were forwarded therefrom over some other road
The first question presented relates to the action of the court in overruling the plea in abatement. The argument is founded upon the theory that the action is prosecuted under- section 24 of the Code of Civil Procedure, whereby “Any company or association of persons formed for the purpose of carrying on any trade or business, or for the purpose of holding any species of property in this state, and not. incorporated, may sue and be sued by such usual name as such company, partnership, or association may have assumed to itself or be known by, and it shall not be necessary in such case to set forth in the process- or pleading, or to prove at the trial, the names of the persons composing such company.” It is contended that when a suit is brought under this section it is an impersonal proceeding, the individual members of the firm are not, as such, parties thereto, and that when dissolution occurs the firm has no longer any legal existence, and that an action so brought therefore abates. We need not investigate this question, because the suit was not in fact brought under the section referred to. The opening paragraph of the petition describes the firm of Metcalf &
It is next argued that the court erred in overruling the objection of the defendant to the introduction of any evidence, on the ground that the petition did not state a cause of action. It will be observed that the petition contained no averment that the plaintiffs were the owners of the goods shipped, nor did it contain any averment of facts showing that the plaintiffs were in any manner liable for their loss. On the other hand, it affirmatively averred that the goods were to be safely conveyed and delivered to McCourtie, Hill & Co. in Chicago. It is claimed that it was thus affirmatively shown that the cause of action was in McCourtie, Hill & Co., and not in
Reversed and remanded.