46 Wis. 493 | Wis. | 1879
The principal controversy in this case is upon the question, whether the cornice and brackets were shipped under Adler’s contract with the defendant, in which case they were at the owner’s risk of damage, or whether they were shipped by the plaintiff without reference to that contract. There is no
The learned county judge instructed the jury, that it was competent for the defendant, by special contract with the shipper, to relieve itself from liability for injuries to the property in transit, unless caused by its own negligence, and fully and fairly submitted to the jury the question whether or not the shipment was made under the Adler contract. The jury must have found that the shipment was not so made, and the verdict is conclusive on that subject. The bill of exceptions is not certified to contain all of the testimony, and it must be presumed that there was sufficient evidence to support the findings of the jury upon all questions of fact submitted to them by the court.
2. The jury were instructed, that if the goods were injured when in the possession of the C. & N. W. R’y Co., on its dock at Escanaba, that company being the agent of the defendant to deliver goods shipped to that place,, and collect freights thereon, the defendant would not thereby be relieved from liability for such injury. For the reason above stated, it must be assumed that the proofs support the instruction. This disposes of an instruction of an opposite character, proposed on behalf of the defendant, which the court refused to give.
3. As to the brackets which were broken, in the defendant’s warehouse in Milwaukee, there can be no doubt that they were in the possession of the defendant as a carrier, and not merely as a warehouseman; and so the court instructed the jury. Angelí on Carriers, p. 122, § 129.
4. The following instructions, proposed on behalf of the defendant, the court refused to give:
“ If you find from the testimony, that the regular freight on the goods in controversy from Milwaukee to Escanaba was*497 $1.70 per hundred, and that, when, shipped at owner’s risk, they were shipped at 20 cents per hundred, and plaintiff: received the goods and paid the 20 cents freight, he must be bound by the condition of owner’s risk.
“ If you find that Mr. Adler, the owner of the building, made the contract of shipment at 20 cents, owner’s risk, and afterwards plaintiff ratified this contract by allowing the rate, he is responsible.”
These propositions are fatally defective in that they ignore the question whether the plaintiff had notice of the Adler contract. He can scarcely be charged with the ratification of a contract to which he was not a party, and of the existence of which he may have been entirely ignorant.
It is believed that the above observations, dispose of all the material questions in the case. We fail to find any error disclosed by the record, which will justify a reversal of the judgment.
By the Oowrt. — Judgment affirmed.
