Mr. Justice Baker
delivered the opinion of the court.
In an action of the fourth class in the Municipal Court, defendant in error Edgerton had judgment for $275 against plaintiff in error, the Bock Island Company, to reverse which this writ of error is prosecuted. The suit was brought against the Bock Island Company and the Hoosac Tunnel Line, and both defendants were served with summons. The amended statement of the plaintiff’s claim against said defendants is as follows:
“States that the plaintiff’s claim is for fifty-three (53) cases of eggs, delivered to the Chicago, Bock Island & Pacific Bailway Company, as common carriers, on or about April 21, 1904, at Beatrice, Nebraska, to be by it transported to the City of Chicago, to be transported from the city of Chicago by the Hoosac Tunnel Line to destination at Albany, New York, and there delivered, which eggs were never delivered.”
Afterwards, by leave of the court, the plaintiff joined the Wabash Bailroad Company as a defendant with the other two defendants, and filed the following statement of his claim against said defendants :
“Plaintiff’s claim is for fifty-three cases of eggs delivered to the Chicago, Bock Island & Pacific Bail-way Company as common carriers on or about April 21,1904, at Beatrice, Nebraska, to be by it transported to the city of Chicago, to be transported from the city of Chicago by the Wabash Bailroad Company as Hoosac Tunnel Line to destination at Albany, New York, and there delivered, which eggs were never delivered.”
The Bock Island and the Wabash companies each entered its appearance, but the Hoosac Tunnel Line entered no appearance. The cause was submitted to the court. The judgment order states that the court found the issues joined in favor of the plaintiff and against the Bock Island Company; assessed plaintiff’s damages at $275, rendered judgment for that sum and costs against said company, and then proceeds as follows: “And it is further ordered by the court that this suit be and the same hereby is discontinued as to the defendants, Wabash Bailroad Company and Hoosac Tunnel Line.”
Judgment that a suit be discontinued is proper where a plaintiff voluntarily withdraws his suit, or where he is regarded as out of court by some technical omission, mispleading or the like. Here two defendants had appeared, and an appearance in an action of the fourth class takes the place of a plea. The third defendant, the Hoosac Tunnel Line, was in default for failure to appear after service of summons and the plaintiff was, under the Municipal Court Act, entitled to judgment against it, as in case of default. The judgment entered in this case, upon the record as it stood at the time of the trial, that the plaintiff recover against one defendant who had appeared, and that the suit be discontinued as to the other two defendants, of which one, in effect, had pleaded to the action, and the other was in default, is not in accordance with any precedent, ancient or modern. It may perhaps, we think, be regarded as an informal judgment against one of three defendants and a judgment in favor of the other two.
In Briggs v. Adams, 31 Ill. 486, the rule that in actions not sounding in tort, where no personal defense such as infancy or bankruptcy is interposed by one defendant, judgment must be rendered against all defendants who are served, or if that cannot be, then against none, was held to apply to actions commenced before justice of the peace. If this action be regarded as an action ex contractu, and not ex delicto, the judgment must be reversed, because the recovery was against one defendant only.
The car reached Chicago April 25, and the next morning stood on a team track in the Rock Island Company’s freight yard in Chicago. Edgerton gave an order to the Rock Island Company to permit Scheele, his employe, to inspect the eggs in the car. About ten o’clock in the morning of April 26, Scheele presented this order at the freight office of the company and was given permission to enter said car to inspect the eggs. Thereupon Scheele, acting for Edgerton, and Ennis acting for one Roberts, broke the seals, went into the car and inspected the eggs, but did not count the cases. They were in the car from an hour and a half to two hours, and on leaving it told the foreman of the freight yard that they were through with their inspection. On their return to Edgerton’s office, Ennis, for Roberts, bought the eggs and Edgerton gave him an order directing the Rock Island Company to deliver the eggs to Roberts. About one o’clock p. m. of the same day, Roberts handed said order to Cummings, the agent of the Wabash Railway Company, with his order to the Rock Island Company to deliver the car to the Wabash and an order to that company to transport the car to Albany, N. Y., and then deliver the eggs to a certain company.
It was stipulated on the trial that on the receipt of said order from Roberts the Rock Island Company applied to said car four seals, and then delivered the car to the Wabash, and that when said car reached Albany said seals were intact and unbroken and were broken by the consignee’s agents. The cases were at once counted by the consignee and the car was found to contain only 327 cases.
The duty of the Rock Island Company was to carry the eggs to Chicago and there deliver them to Edger-ton, or to his order. With their shipment from Chicago to Albany neither Edgerton nor the Rock Island Company was in any way connected. It was, however, proper to offer evidence of such shipment, because the cases of eggs in the car were not counted from the time the car left Beatrice until it reached Albany. The evidence that it then had in it but 327 cases, with the stipulation that the car was sealed when it was delivered to the Wabash, and that the seals were unbroken when the car reached the consignee at Albany, proves that the Bock Island Company delivered, on Edgerton’s order, only 327 of the 380 cases of eggs- received by it, as a common carrier, at Beatrice. It is not stated when on April 25 the car arrived in Chicago, nor when the plaintiff was notified of the arrival. He knew that it had arrived as early as the morning of April 26, and some time during that day the car was delivered to the Wabash. We think that on the facts disclosed by the evidence, the liability of the Bock Island Company, as carrier, continued until the delivery of the car to the Wabash. But if it be conceded that. at some time during April 26th its liability as carrier terminated, that thereafter it was liable only as warehouseman, and that the missing cases of eggs were taken from the car while it was liable as warehouseman, the plaintiff’s right to recover would not be affected.
In an action against a warehouseman for not delivering goods, the burden of proving the delivery to the warehouseman and the failure to re-deliver by him is on the plaintiff, but those facts being proved, it devolves on the warehouseman to show that the goods were lost without his fault. Cumins v. Wood, 44 Ill. 416. In that case it was held that the presumption of negligence on the part of the warehouseman as to certain goods which were destroyed by fire was rebutted, but as to missing goods the loss of which was unexplained, the law presumed negligence and imposed on the warehouseman the burden of showing that he had exercised such care as was required by the nature of the bailment.
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Mr. Justice Baker
delivered the opinion of the court.
In an action of the fourth class in the Municipal Court, defendant in error Edgerton had judgment for $275 against plaintiff in error, the Bock Island Company, to reverse which this writ of error is prosecuted. The suit was brought against the Bock Island Company and the Hoosac Tunnel Line, and both defendants were served with summons. The amended statement of the plaintiff’s claim against said defendants is as follows:
“States that the plaintiff’s claim is for fifty-three (53) cases of eggs, delivered to the Chicago, Bock Island & Pacific Bailway Company, as common carriers, on or about April 21, 1904, at Beatrice, Nebraska, to be by it transported to the City of Chicago, to be transported from the city of Chicago by the Hoosac Tunnel Line to destination at Albany, New York, and there delivered, which eggs were never delivered.”
Afterwards, by leave of the court, the plaintiff joined the Wabash Bailroad Company as a defendant with the other two defendants, and filed the following statement of his claim against said defendants :
“Plaintiff’s claim is for fifty-three cases of eggs delivered to the Chicago, Bock Island & Pacific Bail-way Company as common carriers on or about April 21,1904, at Beatrice, Nebraska, to be by it transported to the city of Chicago, to be transported from the city of Chicago by the Wabash Bailroad Company as Hoosac Tunnel Line to destination at Albany, New York, and there delivered, which eggs were never delivered.”
The Bock Island and the Wabash companies each entered its appearance, but the Hoosac Tunnel Line entered no appearance. The cause was submitted to the court. The judgment order states that the court found the issues joined in favor of the plaintiff and against the Bock Island Company; assessed plaintiff’s damages at $275, rendered judgment for that sum and costs against said company, and then proceeds as follows: “And it is further ordered by the court that this suit be and the same hereby is discontinued as to the defendants, Wabash Bailroad Company and Hoosac Tunnel Line.”
Judgment that a suit be discontinued is proper where a plaintiff voluntarily withdraws his suit, or where he is regarded as out of court by some technical omission, mispleading or the like. Here two defendants had appeared, and an appearance in an action of the fourth class takes the place of a plea. The third defendant, the Hoosac Tunnel Line, was in default for failure to appear after service of summons and the plaintiff was, under the Municipal Court Act, entitled to judgment against it, as in case of default. The judgment entered in this case, upon the record as it stood at the time of the trial, that the plaintiff recover against one defendant who had appeared, and that the suit be discontinued as to the other two defendants, of which one, in effect, had pleaded to the action, and the other was in default, is not in accordance with any precedent, ancient or modern. It may perhaps, we think, be regarded as an informal judgment against one of three defendants and a judgment in favor of the other two.
In Briggs v. Adams, 31 Ill. 486, the rule that in actions not sounding in tort, where no personal defense such as infancy or bankruptcy is interposed by one defendant, judgment must be rendered against all defendants who are served, or if that cannot be, then against none, was held to apply to actions commenced before justice of the peace. If this action be regarded as an action ex contractu, and not ex delicto, the judgment must be reversed, because the recovery was against one defendant only.
The car reached Chicago April 25, and the next morning stood on a team track in the Rock Island Company’s freight yard in Chicago. Edgerton gave an order to the Rock Island Company to permit Scheele, his employe, to inspect the eggs in the car. About ten o’clock in the morning of April 26, Scheele presented this order at the freight office of the company and was given permission to enter said car to inspect the eggs. Thereupon Scheele, acting for Edgerton, and Ennis acting for one Roberts, broke the seals, went into the car and inspected the eggs, but did not count the cases. They were in the car from an hour and a half to two hours, and on leaving it told the foreman of the freight yard that they were through with their inspection. On their return to Edgerton’s office, Ennis, for Roberts, bought the eggs and Edgerton gave him an order directing the Rock Island Company to deliver the eggs to Roberts. About one o’clock p. m. of the same day, Roberts handed said order to Cummings, the agent of the Wabash Railway Company, with his order to the Rock Island Company to deliver the car to the Wabash and an order to that company to transport the car to Albany, N. Y., and then deliver the eggs to a certain company.
It was stipulated on the trial that on the receipt of said order from Roberts the Rock Island Company applied to said car four seals, and then delivered the car to the Wabash, and that when said car reached Albany said seals were intact and unbroken and were broken by the consignee’s agents. The cases were at once counted by the consignee and the car was found to contain only 327 cases.
The duty of the Rock Island Company was to carry the eggs to Chicago and there deliver them to Edger-ton, or to his order. With their shipment from Chicago to Albany neither Edgerton nor the Rock Island Company was in any way connected. It was, however, proper to offer evidence of such shipment, because the cases of eggs in the car were not counted from the time the car left Beatrice until it reached Albany. The evidence that it then had in it but 327 cases, with the stipulation that the car was sealed when it was delivered to the Wabash, and that the seals were unbroken when the car reached the consignee at Albany, proves that the Bock Island Company delivered, on Edgerton’s order, only 327 of the 380 cases of eggs- received by it, as a common carrier, at Beatrice. It is not stated when on April 25 the car arrived in Chicago, nor when the plaintiff was notified of the arrival. He knew that it had arrived as early as the morning of April 26, and some time during that day the car was delivered to the Wabash. We think that on the facts disclosed by the evidence, the liability of the Bock Island Company, as carrier, continued until the delivery of the car to the Wabash. But if it be conceded that. at some time during April 26th its liability as carrier terminated, that thereafter it was liable only as warehouseman, and that the missing cases of eggs were taken from the car while it was liable as warehouseman, the plaintiff’s right to recover would not be affected.
In an action against a warehouseman for not delivering goods, the burden of proving the delivery to the warehouseman and the failure to re-deliver by him is on the plaintiff, but those facts being proved, it devolves on the warehouseman to show that the goods were lost without his fault. Cumins v. Wood, 44 Ill. 416. In that case it was held that the presumption of negligence on the part of the warehouseman as to certain goods which were destroyed by fire was rebutted, but as to missing goods the loss of which was unexplained, the law presumed negligence and imposed on the warehouseman the burden of showing that he had exercised such care as was required by the nature of the bailment. In this case plaintiff in error offered no evidence to explain or account for its failure to deliver to the Wabash, on the order of defendant in error, 57 of the 380 eases of eggs received by it at Beatrice.
The evidence offered by the plaintiff tends to show that the missing cases of eggs were taken from the car while it was in the Bock Island freight yard at Chicago, but whether before or after the sale of the eggs by Edgerton to Boberts does not appear. If they were taken after the sale still, in the opinion of the majority of the court, Edgerton. could recover in an action in tort for their loss.
The Bock Island Company could not excuse its failure to deliver a part of the eggs on the order of Edgerton, the consignee, to deliver all to Boberts, on the ground that Boberts and not Edgerton was the owner of the eggs, unless it showed that the eggs had been taken from its possession by Boberts, or at least that it was so situated as to be made responsible to Boberts in case of a recovery by Edgerton, unless it urged the claim of Boberts in its own defense in this action. G. W. R. R. Co. v. McComas, 33 Ill. 186; 2 Redfield on Railroads, sec. 191, p. 214.
Boberts testified that he refused to pay Edgerton for more eggs than were in the car when it was delivered to the Wabash, and that he paid Edgerton for only 327 cases. He has not demanded that the Bock Island Company deliver to him the missing fifty-three cases, nor requested that company to set up in defense of this suit, that he, and not Edgerton, was the owner of the goods.
The Municipal Court Act provides that on the review of judgments in actions of the fourth class the reviewing court shall, “decide the case upon its merits as they may appear,” from the statement or report signed by the judge.
In the opinion of the majority of the court, upon the merits as they appear in the statement in this record, the plaintiff was entitled to recover the amount recovered, and the judgment will be affirmed.
Affirmed.