Hansen v. Flint & Pere Marquette Railroad

41 N.W. 529, 73 Wis. 346, 1889 Wisc. LEXIS 171

• Court: Wisconsin Supreme Court
• Decided: January 29, 1889
• Status: Published

Opinion

Oetok, J.

The facts are substantially as follows: Eoundy, Peckham & Co., merchants of the city of Milwaukee, on November 2, 1887, upon an order from Hansen dé Hirsh, the respondents, of Onekama, Michigan, shipped to them by the appellant company a large bill of goods. Eoundy, Peckham & Co. on that day sent the goods to the ware-hoiise of the appellant by their drayman, and received in return the following receipt: “ Original. — Milwaukee, -, 188- — Shipped by Roundy, Peekham & Co. the following articles, in good order, to be delivered in like good order, as addressed, without unnecessarjr delay.— Consigned to Hansen dk'Kirsh, Onekama, Mich.— Rescript tion of articles.— Weight.” Here follows a list of the articles shipped, covering four sheets of paper, upon each of which is the same heading as above, and on the .face of the receipt, and on each page or sheet, is stamped by the agent of the appellant company the following: “E. & P. M. R. R. Go. — Rec’d. Nov. 2nd, 1887.— By Agent — Milwaukee.” On the face of the stamp is written the letter “ P.” The stamp was affixed to the receipt by a Mr. Paw-lett, the agent of the appellant company, on that day, who wrote the letter “ P.” thereon as his' initial letter, and the stamp used by him was the one customarily used by the agent for such pur pose. A portion only of the goods arrived at Onekama, their destination, the remainder having been burned or damaged at Manistee, Michigan, by fire. The value of the goods so lost was $651.74, for which, and interest of $45.62, making a total of $697.36, the jury rendered a verdict for the plaintiffs by direction of the court, and from the judgment thereon this appeal is taken.

The contention of the learned counsel of the appellant is that the defendant was entitled to show that its route and line as a carrier extended no further than Manistee, Michigan, and that said goods were safely carried to that point, and deposited in a warehouse, and in a place set apart for the use of the captain and proprietor of a boat called “Advi-ene,” which plied between Manistee and Onekama, who receipted for the goods, and was in the act of removing them and had removed a part onto his boat when,the warehouse was totally destroyed by fire, and the goods not then removed were destroyed or injured without negligence of the defendant; and that the defendant was entitled to show-further that Roundy, Peckham & Co. well understood that the custom was between the defendant’s line and such connecting carrier that such connecting carrier had nothing to do with the defendant’s line, and the circumstances connected with the giving of the receipt, and that the agent, Pawlett, had no authority to make a through bill of lading between Milwaukee and Onekama. This evidence was ruled out by the court, and proper exceptions taken. The admissibility of this evidence depends upon the legal character of the receipt as being a full and perfect contract to carry the goods through the entire route, or otherwise. If the receipt constitutes a through bill of lading of the goods from Milwaukee to Onekama, then it could not be contended that any parol evidence could be given to explain or vary it, and what is established by contract cannot be changed or affected by custom. The general usage of a railroad company in respect to forwarding goods marked for points beyond its terminus will be deemed to enter into its contract of trans-, portation. Hooper v. C. & N. W. R. Co. 27 Wis. 81; Wood v. M. & St. P. R. Co. 27 Wis. 541. Nor could it be contended that the express authority of the agent must be proved when he acted as such in the proper place for receiving goods for the company, and was in possession of the company’s stamp to be used on such receipts, and the company took possession of the goods and caused them to be shipped with knowledge of the receipt, which it must be presumed the company had before they were so shipped. No other proof of agency is necessary than that the agent’s acts justify the party dealing with him in believing that he had authority. Kasson v. Noltner, 43 Wis. 646.

The sole question, therefore, is, Does the receipt import a full and complete contract to carry the goods to their destination, or such a contract that it was fully performed by a delivery of the goods to the connecting carrier? I cannot well see Row a receipt or bill of lading could be drawn to make a through contract, if this receipt does not. It has all the usual terms. The destination and the consignees at that place are named. The goods are “shipped” by Round}?-, Peckham & Co., “in good order, to be delivered in like good order, as addressed, without unnecessary delay.” The address is “ Hansen <& Hirsh, Onekama, Mich.,” as the consignees. Outside of the stamp upon it, it is more like a shipping bill or bill of lading than a mere receipt. The goods are not received, but shipped, by Roundy, Peckham & Co. The stamp is marked “ Rec’d. Nov. 2, 1887, by agent, P., Milwaukee.” All the apt words to make a perfect through contract are used, and none omitted. Man-istee as the destination is not mentioned, nor is it found in the contract anywhere for any purpose, nor is it known from the receipt or contract that there was any connecting caraier on the route, or if so what one, by water from Man-istee. The respondents took no responsibility of carriage beyond Manistee, but the company assumed it and contracted for it. Even within the rule contended for by the learned counsel of the appellant,- — ■ which is claimed to be the general rule by the authorities,— “ that where a carrier receives goods for transportation beyond his own line he is not responsible for any loss occurring beyond his line unless there is a special contract or some usage- of business which shows that such carrier talces the goods for the whole route,” the defendant was bound to carry the goods the whole route; for there was a special contract to that effect-, as we have seen. In Wahl v. Holt, 26 Wis. 703, the bill of lading, or “ shipping receipt,” as it is called in the opinion, had the same apt words: “ To be delivered in good order and condition as when received, as addressed on the margin, or to his or their consignees.” On the margin was: “Account, 0. Wahl, George E. Wilson, Providence, R. I.” But the receipt in that case had also, “ Oare A. T. Co., Buffalo,” and, “ By the Commercial Line of Propellers from Milwaukee to Buffalo.” These words were held to mean only that the line of propellers by which the goods were shipped ran' “ from Milwaukee to Buffalo,” and “ were not intended to define the points between which the Commercial Line had undertaken to transport the goods; ” and it was held that the proprietor of the Commercial Line contracted to carry the goods to Providence, R. I. In that case, as in this, there was mixed land and water transportation by connecting lines. The shipping receipt or bill of lading in the present case is more explicit, definite, and complete, as a through contract, than that in the above case, and there is no mention of an intermediate point at the termination of the defendant’s line, to break the continuity between Milwaukee and Onekama. It is very clear that that case rules this, and is sufficient authority for holding that this is a through contract, without citing other’ authorities. That case as well as this is readily distinguishable from Parmelee v. Western Transp. Co. 26 Wis. 439, as well as from all other cases in which the end of the route was held to be an intermediate point, or the end of the defendant’s line. We think that the court was -warranted in directing a verdict for the plaintiffs.

By the Oourt.— The judgment of the circuit court is affirmed.