47 Mich. 231 | Mich. | 1881
The defendant in error was allowed to recover in the court below for alleged negligence in not making seasonable carriage and delivery of a package of advertising circulars, and the company complain of errors.
Miss Hoot had organized a troupe of singers under the name of “Arabella Hoot Concert Company” to travel through the country and give concerts. On the 18th of December, 1878, she contracted through an agent with Duncan & Einley to give a concert at Peak Hall, in Niles, on Thursday the 26th of December, the respective parties to divide the proceeds in certain proportions. It was one of the express terms of the contract that Miss Hoot should deliver to Duncan & Einley 1000 printed circulars to be used for advertising, and that the delivery should be made to them not later than the 21st in order to afford opportunity to give satisfactory notice. Chase & Kent, of Elk-hart, printed the circulars and sent them to the office of plaintiff in error at that place for carriage to Niles. They were put up in a package and directed as follows:
“ Prop. Peak Hall,
Niles, Mich.
For Arabella Hoot Concert Co., Niles, Mich.
From Chase & Kent. 18 Ex. 25 cts.”
The package in question in this suit did not arrive at Niles by the first train on the 21st of December, and it was well understood that it could not by any other train on that day in season to be delivered, or to be made use of under the contract, and Duncan & Finley immediately cancelled their agreement and gave notice to a person who had acted' for defendant in error in some other matters. They fore-bore to make any preparations for the concert and it fell through. And the claim is made by defendant in error that this failure brought on others, and finally caused the breaking up of the enterprise and the loss of present means and of large future gains, and the whole is averred to have proceeded from the. negligence of the express company.
As developed on the trial the gist of the complaint is
It therefore becomes a vital question whether, upon the admitted facts, the express company was under that dnty. The answer appears to-be unavoidable. The express company was not asked to deviate from the usual course, and the circumstances suggested no cause for any change. There was no request for any exception in favor of this particular freight and for a new and special arrangement for the time being to accommodate. Nor was there anything to indicate to the company that failure to deliver at Niles by Saturday forenoon, or any other short time, would involve defendant in error or anybody else in a breach of contract to be followed by great or small damage, or even would eventuate in loss of any kind to her or to any others. The package was entrusted to the express company with express directions for its carriage in a specified train, and the carriers were bound to suppose that the freighter, in giving the explicit direction, knew what he was about and meditated the usual times, methods and connections observed by that train. No other view is possible.
Admitting this and what is the consequence ? The fact is undisputed that, according to the usual course of business, the freight received at Elkhart on Friday night to be carried
In reviewing this case we have refrained from noticing the points in detail and have applied attention to the substance. The composition of the record and the form practically given to the controversy have made this course almost necessary. A great deal appears not authorized by the declaration and the case seems to have taken a range beyond the issues made by the pleadings and beyond those limits which the law would prescribe in a definition of the transaction. Had the case been prosecuted on the single and distinct theory that the express company in not delivering by the Monday succeeding the shipment were guilty of unreasonable delay and liable for such damages as the carriers were bound to suppose might ensue, the contention would have presented another and different shape.
The view taken by the circuit judge was contrary to our opinion of the law applicable to the case and the judgment must be reversed with costs and a new trial granted.
But the costs will be taxed with an abatement of half the cost of printing the record for the reason that the court is satisfied it is unnecessarily prolix and subject to Buie 59.