White v. Missouri Pacific Railway Co.

19 Mo. App. 400 | Mo. Ct. App. | 1885

Ellison, J.

The shipping contract in evidence contained the following stipulation : “Now in consideration that the party of the first part will transport for the party of the second part, one car of cattle and one car of hogs to the National Stock Yards station, at the rate of thirty-five dollars per car, with privilege of Chicago at forty-five dollars per car load,” etc.

The contract further provided that plaintiff should unload and reload at transfer points. St. Louis was the end of defendant’s line, and there would be a transfer from defendant’s line to some other at that point, if the stock should be taken to Chicago.

The fact is not disputed that defendant did not transport the stock further than St. Louis.

There is no doubt in my mind that the contract of shipment meant that plaintiff could ship to St. Louis, and there he had the privilege of determining, in a reasonable time, whether he would go on to Chicago. Reflection on the nature and object of the contract will demonstrate this to be its true interpretation. Defendant is a public carrier of freight, soliciting patronage from the stock men along its line. It is a matter of which the court may take judicial notice, that St. Louis and Chicago are great marts of trade, and cities in which are to be found, two leading western markets for stock. Gibson v. Stevens, 8 How. 398; 1 Green], Ev. sect. 6, and notes. It is common knowledge that there are occasions when shippers would prefer the St. Louis market to the Chicago market, and vice versa. Plaintiff being a stock dealer and shipper would naturally be attracted to defendant’s road by the privilege offered him by defendant,' of the opportunity of testing one of these markets, and if found unsatisfactory, of transporting his stock to the other. If going to St. Louis in the first instance was to be of no advantage to plaintiff — if he was not to be given an opportunity of deciding at St. Louis, whether he preferred that city or Chicago, where would there be any reason for inserting the clause, “ with privilege- of Chicago,” in the contract ? If he were compelled to determine which city he preferred before he left Boonville, there was no necessity of an alternative in the contract, as he could insert the place determined upon at the time of signing. There can be no question that his determination or election was to be made at St. Louis. He was to determine there which market of the two cities he preferred. How could he determine this, except by a test of the market? He arrives at St. Louis with the privilege of going on to Chicago, if he does not like the market in the former place. How is he to ascertain that the market does not suit him except by a test ? Manifestly, if he was not permitted to have an opportunity to test the St. Louis market, the “privilege” would be no privilege, for what privilege would it be to plaintiff sitting in a caboose, and there electing to exercise the privilege of passing through St. Louis to Chicago.

But it was asked in argument whether defendant was to be held to the obligation of transporting stock to Chicago at any time within a week, a month, or six months, after their arrival in St. Louis. In that regard this contract would be looked upon as the law does upon many others; plaintiff must exercise his privilege or make his election in a reasonable time, having in view the nature and object of the contract.

In this case it appears plaintiff arrived in St. Louis between three and four o’ clock one afternoon, and by ten o’clock next morning he-was demanding that his privilege of Chicago be accorded him. The attention of the court was called to the fact that defendant was only-bound to transport to Chicago in a reasonable time, after the arrival in St. Louis, by plaintiff ’ s second instruction, and its finding for plaintiff is evidence that the court thought the privilege exercised in a reasonable time.

There is another consideration highly favorable to this view and interpretation of this contract. The uncontradicted evidence is that when defendant’s general freight agent was informed of plaintiff’s election, and called iipon to carry out this contract by furnishing transportation to Chicago, he made no objection to the contract nor to the time of his being notified of plaintiff’s election. He made no objection at all, and only stated that they could do nothing on account of a mob in St. - Louis. This statement of why he could not comply with it may well be taken as a recognition. This suit being on a special contract, the existence of a mob in St. Louis would not relieve the defendant from the burden of his contract. ’ In the case of Harrison v. Ry. Co. (74 Mo. 364), it is said, “that when a -party by his own contract creates a duty or charge upon himself, he is bound to make it good, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract.” To this same effect is Hutchinson on Carriers, sect. 317; Angell on Carriers, sect. 294.

Defendant makes the further point that its station agent at Boonville had no authority to contract for transportation beyond the terminus of its own line. This, taken by itself, is true, but here the evidence shows that the parties to this action had made other similar contracts prior to this, the defendant being represented by the station agent at Boonville, which contracts had been recognized and carried out by defendant; this was a “ course of dealing between .plaintiff’s and defendant’s agent, * . * * from which the authority of the agent to make the contract might be inferred.” Besides, defendant’s general freight agent, who has unquestioned right to make such contracts, recognized its validity in this case. The cases of Grover & Baker Sewing Machine Co. v. Ry. Co. (70 Mo. 672), and Loomis v. Ry. Co. (17 Mo. App. 340), recognize what is said here.

The contract of shipment likewise contained an exemption from liability on the part of defendant for any loss or damage occurring beyond the limits of defendant’s railway, and defendant claims this exempts it from all obligation except to protect plaintiff as to the . contract-price for the freight. We do not understand the action to be for a loss occurring beyond defendant’s line. It is an action on the contract; the breach being a failure to transport to Chicago, as therein agreed. In this case there was no opportunity for a loss to occur beyond defendant’s own line, for the simple-reason, it refused to transport beyond.

That part of defendant’s-answer stricken out by the court was no defence to the action. That the plaintiff knew defendant did not have a line extending from St. Louis to Chicago was certainly no reason why it may not have contracted to transport the stock to Chicago. The allegation that plaintiff knew that defendant only undertook to transport by way of the Chicago & Alton railway could not have been proven under the written contract between the parties declared on. Jones v. Shaw, 67 Mo. 667, and authorities cited.

If it should be' conceded that that portion of the answer in relation to the delivery of the stock to plaintiff’s-agents at St. Louis, where it is alleged to have remained for two or three days before demand was made to ship it to Chicago, was improperly stricken out, yet no harm has resulted to defendant, for the issue was tried as to whether plaintiff made the demand within a reasonable time ; this is shown by the evidence and instruction of the court.. No objection was made to this issue being made under the general denial. Though defendant offers no testimony, yet his cross-examination of plaintiff’s witnesses shows this matter to have been investigated. The allegation that the Chicago & Alton Railway Company had been forced by an armed mob to cease business was a matter that did not concern plaintiff or his cause-of action; he had a contract in which the contingency of mobs was not provided against, and in which the Chicago & Alton Railway Company did not figure. Harrison v. Ry. Co., supra.

The measure of damage was properly declared by the court.

This case was tried by the court and the chief necessity or purpose of instructions is merely to show upon what theory the court tried the cause, and the same necessity for instructions does not exist as if the case were tried by jury. The defendant, in a jury trial, would perhaps have been entitled to an instruction submitting the question, whether plaintiff had made his election to remain in St. Louis, before he made his demand to go to Chicago. Of course, if he once elected to waive his-privilege of Chicago, he could not afterwards insist on being taken there. But the instruction defendant asks on that subject is properly refused, for it declares plaintiff was bound to elect, before or at the time of his arrival at St. Louis, thus preventing him from having a reasonable time.

Perceiving no error justifying a reversal, we affirm the judgment.

All concur.