66 Mo. App. 388 | Mo. Ct. App. | 1896
This is an action to recover damages for the breach of a verbal contract, by which the defendant undertook to receive and ship ten car loads of cattle, on the evening of July 9, 1894, from its station at the city of Lexington, to Kansas City.
The replication was that the said release pleaded by the defendant was without consideration and void.
There was a trial and judgment for plaintiffs, and from the latter the defendant has appealed.
I. The defendant objects that the trial court erred in giving that part of plaintiffs’ first instruction which declared to the jury that the evidence was sufficient to support the authority of defendant’s station agent to verbally contract to ship the plaintiffs’ cattle from Lexington station, on the night of July 9, 1894. The authority of the servants of a carrier is ordinarily a question of fact, like any other fact to be determined by the jury, and the burden of proof rests on the party claiming such authority. 2 Redfield on Railways, 145-149. When a station agent, clothed with the power to receive and forward freight, makes a contract within the scope of his apparent authority, he thereby binds the company, though he may have exceeded his authority; and when such company seeks to avoid liability, arising under such contract, on the ground that its agent had no such authority, it must show that the party with whom the contract was made had knowledge of the fact that the agent was acting beyond his authority. Pruitt v. Railroad, 62 Mo. 540; Harrison v. Railroad, 74 Mo. 364; Northrup v. Ins. Co., 47 Mo. 439; Miller v. Railroad, 62 Mo. App. 252.
In the present case the undisputed evidence shows
II. The defendant further objects that the court erred in giving the plaintiffs’ second, and in refusing defendant’s third, instruction in relation to the release pleaded and relied on by defendant as a defense. The written contract of affreightment under which the plaintiffs’ cattle were shipped, provided that the defendant would ship plaintiffs’ cattle from Lexington station to Kansas City, “at the rate of $14.30 per car, said rate being less than the rate charged for shipments transported at carrier’s risk, ’ ’ or a reduced rate. The release pleaded was embraced in the tenth clause of this contract.
The “freight tariff,” of defendant, in force at the ■time of plaintiffs’ shipment, contained the following special instructions to its agents, viz.: “(4) One hundred and fifty per cent of the rates named in this ■ tariff will be charged on shipments made without firm
The undisputed evidence showed that the distance from Lexington to Kansas City is forty-three miles. By section 2674, Revised Statutes, live stock is placed in class “H;” and, under section 2675, the maximum charge of class “H” is $10 per car load for the first twenty-five miles, and $7 per car load for the second twenty-five miles. The maximum rate which defendant was allowed to charge, under the statute, for a car load of cattle shipped from Lexington to Kansas City, was $17. When the plaintiffs offered their cattle for shipment, the defendant in effect said to them something like this: “We will charge you our maximum rate of one hundred and fifty per cent of the rate named in our “Freight Tariff,” or $21.45 for each car load of cattle we transport for you from Lexington to Kansas City, unless you will enter into a special contract of affreightment with us releasing any cause of action you may have, under the prior verbal contract made with us, in which case we will ship your cattle for our minimum rate of $14.30 for each car load.” But, as we have just seen, one hundred and fifty per cent of the rate named in defendant’s freight tariff would be in excess of the maximum rate allowed by the statute. The plaintiffs were required by the defendant to accept one of two alternatives, namely: to either pay the defendant’s illegal and extorsive maximum rate, or execute the written contract releasing the cause of action that had accrued to them against defendant, on their prior verbal contract for the shipment of the cattle, and thereby get defendant’s minimum rate.
A case might well be, if this is not one, where the defendant’s minimum rate added to the amount of the damages sustained by the breach of the prior verbal agreement by the carrier, would very far exceed the
The plaintiffs’ said second instruction, telling the jury that the release clause was void, if they believed from the evidence that the plaintiffs had given notice when they executed the same, that they did not waive-their claims for damages for the breach of the prior verbal contract, while not a correct exposition of the law, yet, inasmuch as the verdict was the only one the jury could properly have returned on the issue as-to the release, we think the error was harmless. Green v. Bank, 128 Mo. 559, and cases there cited. As the enunciation of the defendant’s said third refused instruction is at variance with the views of the law in this paragraph expressed, we must hold that it was properly refused.
III. The defendant objects that the court erred in giving the plaintiffs’ third instruction authorizing-the jury, in estimating the damages, to take into consideration the variance in the value of the cattle in Kansas City, between the time when they should have-reached there, had they been shipped on the ninth day
The provision in the verbal contract pleaded to the effect that the plaintiffs’ cattle were to be shipped on the day named so as to be on the Kansas City market on the next day, sufficiently imparted the information to defendant’s agent that the cattle were designed for sale in that market. This brought the plaintiffs’ design in that regard directly to the knowledge of the defendant, when the contract was made. The petition, therefore, contained every essential required by the precedents to warrant the instruction. Gelvin v. Railroad, 21 Mo. App. 273; Guinn v. Railroad, 20 Mo. App. 453; Armstrong v. Railroad, 17 Mo. App. 403. Johnson-Brinkman v. Railroad, 64 Mo. App. 590.
In Armstrong v Railroad, ante, the rule for the ad-measurement of damages was declared by Judge Ellison to be the “ difference in the price at the time when the stock did arrive and when it should have arrived.” In Glasscock v. Railroad, 69 Mo. 588, it is said that, ‘ ‘ the true measure of damages was the differ
And so it has been ruled in this state that where a carrier receives stock for shipment to a distant market under a contract of affreightment and fails to transport and deliver the same in a reasonable time, the measure of the shipper’s damages is the difference in price of the stock when it ought to have been delivered, and when it was actually delivered at the place of destination. Tucker v. Railroad, 50 Mo. 385; Faukner v. Railroad, 51 Mo. 311. And a like rule prevails in many other jurisdictions. Ward v. Railroad, 47 N. Y. 29; Kent v. Railroad, 22 Barb. 278; Feet v. Railroad, 20 Wis. 594; Lessin v. Railroad, 14 Mich. 489; Railroad v. Ragsdale, 46 Miss. 458; Weston v. Railroad, 54 Mo. 376; Whalon v. Aldrich, 8 Minn. 346. And the rule just referred to we think applicable to a ease like the one under consideration.
It is true that it was declared in Gelvin v. Railroad, ante, that the true measure of damages in a case like this is the difference between the market value at Kansas City, at the time the cattle would have arrived there, if the defendant had kept its contract, and their value at Lexington. And this rule has the support of a number of authorities cited by defendant in its brief. But no reason is seen why the measure of damages should be different in a case where the carrier contracts to receive and transport live stock or commodities of
IV. It is a sufficient answer to the defendant’s objection that there was no evidence adduced showing that the defendant’s agent at the time of the making
Y. The plaintiffs did not testify that they could have procured transportation for their cattle over the line of the Chicago & Alton railway, after defendant had refused to keep their contract. It does not appear from any evidence presented by the record that the line of the said Chicago & Alton railway extended from Lexington to Kansas City, and that plaintiffs, after the defendant’s default, could have procured transportation for their cattle by that line. It does sufficiently appear, however, that the nearest station of the said Chicago & Alton railway was several miles away, and therefore there are no facts proved bringing plaintiffs within the rule stated by Mr. Hutchinson in his work on Carriers at page 774.
Thy judgment is, we think, for the right party, and ought to be affirmed; which is ordered accordingly.