71 Mo. 203 | Mo. | 1879
The only question of importance in this case is the propriety of the instructions given by the court. As the principal objections to them were not so much on
The action is one brought by the shipper of goods against the carrier for breach of contract of affreightment. There were five different consignments, of date June 1st, June 29th, July 25th, August 24th and October 6th, all in 1872, and there are five counts in the petition, but they are precisely alike, except as to dates and amounts. The first count charges that, on June 1st, 1872, the plaintiff delivered to defendant thirty-six boxes of sewing machines, worth $1,112, consigned to T. Kendall, Memphis, Tenn.; that defendant failed to deliver the same; alleges the plaintiff's ownership, the defendant’s conversion of the goods, &c., in the usual form. The defense set up in the answer is that, although the goods were consigned to T. Kendall, “■it was intended by plaintiff, and well understood by both plaintiff and defendant, that, on the arrival of said goods at Memphis, the said Kendall not being there, (and not expecting to be,) to receive said goods, the goods were to be delivered to Beach & Sutherland, dealers in sewing machines of plaintiff’s manufacture,” on whose order they were shipped, and to whom the defendant had previously delivered several packages, with consent of plaintiff', and that the goods in question were thus delivered in pursuance of this understanding. The answer further states that this last delivery was known to plaintiff, and assented to and ratified, and no objection made until one year after delivery, and after it was discovered that the price could not be col
The facts, as sought to be proved by plaintiff, and as I presume the jury found them to be, were, in substance* these : The plaintiff was a corporation having a large manufactory of sewing machines in Cleveland. Beach & Sutherland were dealers in these machines in Memphis. In 1870 they had a contract, in writing, by which the sewing machine company were to furnish them, from time to time* with sewing machines, at a certain price below that at re-tail, in consideration that the firm of Beach & Sutherland would devote themselves exclusively to the selling of such machines, and would take a certain number each year. Beach & Sutherland were to pay cash for all machines ordered, until a certain mortgage was given. As the mortgage was not given, the machines were always consigned to some third party, and the bills of lading were taken in the name of the consignees. To these bills of lading were attached drafts on Beach & Sutherland, and these bills of lading and drafts were sent to a bank in Memphis, with directions that the bills of lading were not to be delivered to Beach & Sutherland until the drafts were paid. In regard to the shipments from June 1st to October 6th, 1872, the subject matter of this action, the consignments were to different employees of the plaintiff at Cleveland, and the boxes were marked with the name of the consignee, and, according, to the testimony of plaintiff’s witnesses, marked on the outside of each box, in large letters, from a stencil plate, with this direction: “ To be delivered to the consignee only, or his order.” The freight agent of defendant, however, stated that, if there was such direction, he did not observe it, and thought he would have observed it had it been on the boxes. However this may have been, the bills of-lading were made out, as before stated, in the name of the consignee, and these bills, with an order on the freight agent at Memphis, signed by the consignee, directing him
I must, however, not omit the exclusion by the court of a portion of Mr. Beach’s deposition, at the instance of plaintiff', which is thus stated in the printed abstract: “ Question: State if you used any means of advertising your business?” “Answer: I advertised mostly during 1871
It appeared further, that the defendant had been in the habit, for a year or more previous to these five shipments, of delivering all machines sent to Memphis to B. & S., no matter how they were consigned, and that Mr. Beach had told some one of its agents that the machines were intended for him, and that he supposed the different names on the boxes and in the way-bills were intended Inerely to distinguish the shipments.
On the facts appearing at the trial, the court instructed the jury, at request of plaintiff as follows : 1. “When a railroad company receives goods for transportation, which are marked and directed to certain persons at a certain place, the law implies an agreement, on the part of the railroad, under ordinary circumstances, to transport the goods to such place, and there deliver them to, or have them held or stored, for the persons to whom they are addressed. A railroad company, in delivering goods, is bound to take care that they are delivered to the proper parties, and it is no excuse for a wrong delivery that it was made through mistake, or because the railroad was deceived by the statements of third parties, who claimed the goods. And the court, therefore, instructs the jury that, of itself, it is no defense to the railroad in this case that Beach & Sutherland represented to them that the machines in question were intended for them, and that the marks on the
2. “ It is the duty of a railroad company, where goods are safely conveyed to the place of destination, and the persons to whom they are directed are absent or cannot be found, either to hold said goods or to have them stored in some safe place for the owner, and in this case the mere fact that the several consignees named in the freight bills of these machines were not and did not intend to be in Memphis upon the arrival of the goods at that place, did not, of itself, justify defendant in disregarding the names and marks upon the boxes, or delivering them to third parties.”
3. “ The mere fact that the machines in question were shipped to Memphis on the order of Beach & Sutherland, as purchasers, did not entitle them to their possession on arrival, if the goods were consigned to other names for the purpose of preventing said Beach & Sutherland from getting them, until they had paid the drafts drawn against them, or obtained from the bank the papers authorizing their delivery.”
4. “ The delivery of the machines in question to Beach & Sutherland immediately on their arrival in Memphis was not warranted or authorized by the marks and directions upon the boxes, and in order to justify said delivery it devolves upon the defendant to prove to the satisfaction of the jury, either that it was plaintiff’s intention, notwithstanding said directions and marks, that said Beach & Sutherland should get the goods on merely paying the freight charges on the same, or else that plaintiff induced defendant to believe that such was its intention; and the defendant is not excused for delivering the goods to Beach & Sutherland through mistake, unless it appears that plaintiff' caused the mistake in some way. If, therefore, the jury believe that defendant was imposed upon by Beach & Sutherland, and acted merely on what they said, and had no other knowledge of plaintiff’s intentions, except as
5. “It makes no difference in this case, as far as the liability of defendant is concerned, what information the plaintiff had from Beach & Sutherland as to their reception of machines from time to time, unless defendant also knew, or was induced by the conduct of plaintiff’ to believe, that plaintiff* had such information, and was thereby misled into supposing that plaintiff approved this manner of delivering the goods.”
6. “ The mere fact that the plaintiff knew that Beach & Sutherland were getting possession of machines consigned to Memphis to the names of third parties, before paying the drafts drawn against the shipments, cannot avail defendant, unless it further appears that plaintiff knew that the machines were being delivered by the railroad without presentation of the bills of lading or orders on the freight agent, and under a mistaken impression on the part of the railroad company that such delivery was in accordance with plaintiff’s intentions.”
7. “ The mere fact that plaintiff, after it discovered that defendant had delivered the machines in question to Beach & Sutherland on their arrival in Memphis, attempted to collect the price of the same from said firm, is and was not sufficient to constitute a ratification of the acts of defendant in so delivering said goods, unless plaintiff intended thereby to waive its claim against defendant for an improper delivery, and to treat the said delivery as having no relation to the delay or default of said Beach & Sutherland in paying for said machines.”
8. “ There are five counts in the petition, covering five different consignments of machines, and the jury will have to find a verdict on each count separately. If, therefore, they find for the plaintiff on any or all of the counts,
And the following instructions were given at the request of defendant: 1. “ If at the time the defendant received from the plaintiff the goods mentioned in the several counts of the petition for transportation, it was the understanding of the plaintiff:' and defendant that said goods were to be delivered on their arrival in Memphis to said Beach & Sutherland, the verdict of the jury should be for the defendant.”
2. “If Beach & Sutherland ordered and purchased from the plaintiff the goods in the several counts of the petition mentioned, on credit, and at the time of the shipment of said goods by the plaintiff, it was the understanding between the plaintiff and said Beach & Sutherland, that said goods should on their arrival in Memphis, irrespective of the payment of the purchase price thereof, be delivered to said Beach & Sutherland, in that case, the verdict of the jury should be for defendant ”
3. “ Although, as between the plaintiff and said Beach & Sutherland, the latter were not authorized to have or receive the goods mentioned in the several 'counts of the petition, until they had first paid the purchase price thereof, yet, if at the time defendant received said goods from the plaintiff for transportation, the defendant was ignorant of said Beach & Sutherland’s said want of authority, and was resting under the belief, caused by acts or conduct of the plaintiff', that said Beach & Sutherland had authority from the plaintiff to receive said goods on their arrival in Memphis, and if, at the time the plaintiff so delivered said goods to the defendant, the plaintiff was aware of the defendant’s said belief, but failed and neglected to disabuse the defend
The following instruction, asked by defendant, the court refused to give : 4. “ If the jury believe from the evidence that when the machines received from the plaintiff for transportation reached Memphis, the consignees were non-residents of Tennessee, and did not expect to be in Memphis to receive said shipments; that the defendant thereupon delivered said goods to Beach & Sutherland; that said Beach & Sutherland were either the general agents of plaintiff or were permitted by plaintiff to hold themselves out as such, then they will find for the defendant.”
The jury found a verdict-for plain tiff on all the countsof the petition, and assessed the total damages at $5,033, which was the value of the goods as billed to Beach & Sutherland, without interest. The usual motions for new trial and in arrest of judgment were made and overruled, and defendant appealed to the St. Louis court of appeals, where the judgment was reversed.
The additional objection to these two instructions, that they referred to two facts not at all disputed, and having no connection with the defense set up, and were therefore calculated to mislead the jury, is certainly a singular one, looking at the instructions for defendant and the manifest object of the testimony in regard to the absence of Kendall and the other consignees from Memphis, and that they had on intention whatever to be in Memphis to receive the goods, and that Beach & Sutherland represented to defendant that these marks on.the boxes were merely intended to distinguish the shipments. These two facts were prominent and leading ones, which, in connection with others, were relied on by defendant to establish their defense under the instructions given for them. It was necessary, therefore, for the court to instruct the jury in regard to them; and, whether necessary or not, if the law was correctly expounded in the instructions, it cannot be said that they were outside of the case;
The verbal criticisms upon the instructions we think it unnecessary particularly to discuss. The instructions are all copied in this opinion, and it will be seen, I think, upon perusal, that they are, upon the whole, such an exposition of the law of the case as could not be misunderstood by an intelligent jury. That they were not misled and did not misunderstand, is shown oy their verdict, which was obviously for the right party. That they re
It is not thought necessary to discuss the propositions of law contained in the instructions, or cite authorities in support of them, because no point is made in this court on that subject. They are to be found cited in the brief of the plaintiff’s counsel. It seems quite certain that if the law is not as stated in these instructions, then such arrangements as were proved in this case to have been made, would be perfectly futile to secure the object in view, which was the same with some modifications as are usually obtained by the C. O. D. mark so frequently used in single shipments of small amount. The caution of the plaintiff seems to have been singularly explicit and minute to prevent the delivery of these goods to Beach & Sutherland. The superscription on each box, “ to be delivered to the consignee only or his written order,” may be stricken out, and the law is the same.
The instructions for the defendant were exceedingly favorable to him. There was certainly no evidence of any direct communication between the plaintiff' and defendant on this point or any other, except the marks on the packages, and none, if any, communication between plaintiff and Beach & Sutherland on this subject, though letters between them are produced. Yet the court went further and allowed the jury to find for defendant, if “ the acts or conduct of plaintiff” could lead them to an inference that the goods were really intended to be delivered to Beach & Sutherland. The instructions are undoubtedly correct, yet