Wolf v. Hough

22 Kan. 659 | Kan. | 1879

The opinion of the court was delivered by

Brewer, J.:

This is one of those petty cases that never should come to this court, and one which reluctantly we are compelled to reverse. The action was replevin; the defense a carrier’s lien, and the verdict and judgment against the lien. The facts are these: The goods were shipped from Roselle, Illinois, to Girard, Kansas. The M. R., Ft. Scott & G. Rid. Co., whose agent the plaintiff in error was, carried the goods over its road from Kansas City to Girard. A portion only of its charges therefor was paid, and for the balance, $1.40, it claimed a lien, and refused to deliver the goods until it had received payment of such balance. To avoid the otherwise unquestioned right to retain possession for its carrier’s lien, the plaintiff showed that when the goods were shipped at Roselle, a place on the line of the Chicago & Pacific railroad, the agent of the latter road received what he said were the freight charges through, and issued to the shipper a receipt which stated that such charges were paid through to Girard. Would this destroy the lien? Manifestly not. There was not a scintilla of evidence that the agent at Roselle was the agent of the M. R., Ft. Scott & G. Rid., or authorized in any manner to contract for it, or that he claimed to be so authorized, nor that there was any partnership or agreement of any kind between the two railroads as to the shipment of freight or the making of contracts nor that the Gulf road had any knowledge or notice of the terms of the shipment at Roselle. True, when Hough demanded the goods at Girard, he showed the agent there the receipt, but this was after the carriage was completed and the rights of the parties fixed. Conceding that this receipt was a binding contract on the C. & P. road, and that that road is liable in damages for a breach of such eon-tract^.yet before the Gulf road could be held to its terms it mu,sl/"a£>pear either that it had given authority in the first instance to make such a contract, or that it had undertaken the transportation with notice that such a contract had been made for it. The mere fact that it received and transported the goods, does not tend to prove that it had notice of any contract which an agent of another road in another state had assumed to make for it, or of any contract which'’such other road might have made in regard to such shipment, or that the goods were received to be transported under such contract. It may be conceded, as counsel claim, that the Gulf road was under no obligation to receive and transport the goods without prepayment of its charges, but still a failure insist on prepayment was no waiver of its lien. A carrier may always receive goods, and trust to its lien for the payment of its charges.

The judgment will be reversed, and the case remanded for a new trial.

All the Justices concurring.