Cooley Ch. J.
I am not satisfied that there is any thing in the contract upon which the plaintiffs below declared, which is beyond the scope of the ordinary business of the forwarder; and if not, there can be no question of the defendant’s liability upon it, since his clerk, left in charge of the receipt of goods, must be presumed to have authority to make all such contracts as are usual and proper in the business in which he was employed; and this presumption, in the absence of any-knowledge by plaintiffs of restrictions upon such authority, must be conclusive.
It was always the duty of the forwarder to accompany the delivery of goods to- the carrier with such instructions, communicated to him for the purpose, as should seem necessary to ensure their carriage and delivery according to the wishes of the consignor; and these instructions were expected to govern the action, not only of the first, but of any subsequent carrier, until the goods should reach the hands of the ultimate consignee. It is true that carriers formerly were not expected to be collecting agents, nor forwarders to send on bills for collection; but when a new element was introduced into the carrying trade of the country by the establishment of organizations who not only carried property, but also acted as agents for the consignor in collecting from the consignee the price thereof, the proper and safe transaction of this business required that information respecting the charges, with the proper instruc-tions not to deliver until they were paid, should accompany the property itself; as the delivery would be expected to be unconditional unless such instructions were had.
The bringing of this new element into the carrying trade does not, of course, oblige the ordinary carrier to become a collecting agent also; but when his operations extend over a part of a line where goods are to be sent, and he is to be the medium of their delivery to an organization which is both carrier and collecting agent, there is nothing [502]*502in the nature of the necessary instructions to such second carrier which makes them foreign to his business, or which makes it improper for the-forwarder to send or the carrier to take them. Such instructions are not of a new class or species from those which it is customary for a forwarder to insert in the bill of lading; they pertain to the carriage and delivery; and they can no more be considered aside from his ordinary business than would any other direction be, which did not happen to be usual in former times. A separate bill is not necessarily sent; and it is evident from the manner in which Mr. Ladd prepared the papers, that he neither expected nor desired a separate bill to be sent in the present case.
The case, then, plainly stated is this: A forwarder has property delivered to his clerk to be sent by a common carrier to a certain point, and there delivered to another carrier, with directions qualifying or imposing restrictions upon the delivery by the latter. I think the sending forward of such instructions with the property is fairly within the general scope of the forwarder’s business, and that his clerk must, therefore, be assumed to have had authority to make a contract to that effect. Undoubtedly the forwarder may decline to make airy such contract; but a local custom not to make them, or instructions to the clerk to that effect, can not be binding upon a party who has no knowledge of such custom or intsructions. He deals with one who he has a right to assume is vested with authority to make any proper contract concerning and properly connected with the forwarding of goods; and this is- one of' that character.
' But if I thought differently upon this point, I should still think the Circuit Judge was correct in charging the jury that there was evidence fairly tending to show the making by the defendant of the agreement the plaintiffs had counted upon. The receipt of the property by the defendant’s clerk under the special instructions is not [503]*503disputed; but his authority to consent to send as directed is denied. The instructions to him were in writing, and they constituted the only means, so far as the jury were informed, by which the defendant was to ascertain who was the consignee, or to what place the property was to be sent. It is admitted that after the cleric had received the property under these instructions, the defendant forwarded them by common carrier to Saginaw, complying with the directions in all respects except in not accompanying them with a statement of the plaintiffs’ charges. It is not indeed stated that this was actually done by the defendant in person, instead of by his cleric or servant, but I think the jury were fairly at liberty to infer this from the evidence. And if so, they must also infer that he was aware of the instructions; and if he was, and saw fit to forward the property at all, I think the jury were right in holding him bound by those instructions. If the clerk exceeded his authority in making the special contract, the defendant, when it was brought to his notice, was at liberty either to affirm or repudiate it; but he could not affirm it in part and disaffirm the remainder without the consent of the plaintiffs. He entered upon the performance of the contract without apprising the plaintiffs that he disavowed any portion of it; and if he did this with knowledge of the facts, as the jury might fairly infer that he did, then he must be held to have affirmed the clerk’s action. Whether the evidence in the case is sufficient to satisfy us on this point, is another question. I only say that I discover no error in the charge of the Circuit Judge upon it.
A question of more difficulty, perhaps, is whether the plaintiffs were entitled to recover any thing more than nominal damages for the breach of the agreement. In the court below they were allowed to recover the full amount of their charges against Martin, the ultimate consignee. It appears that the carrier did not deliver the property, according to his instructions, to the Express Company, but [504]*504handed it over directly to Martin. Defendant claims that the loss by the plaintiffs of their demand against Martin was not the direct and natural result of the breach of contract counted upon, but that if the instructions had been sent and the carrier had disobeyed them, as he did those actually received, the same result would have followed. The loss, therefore, it is said, happened not from the failure of defendant to perform his contract, but from the mis - delivery of the goods by the carrier. The plaintiffs reply that the carrier, not receiving any instructions which made the express company any thing more than mere agents for the delivery to Martin, might well feel justified in making personal delivery without their intervention; and that it is not to be assumed that he would have disobeyed directions in which any one appeared to have a beneficial interest. The defendant also claims that he would have complied fully with the contract if he had forwarded the instructions to the express company along with the goods in a sealed envelope; but I think otherwise. Instructions respecting carriage and delivery are usually inserted in the bill of lading; or so transmitted that each carrier through whose hands they pass is informed of them; and that is the fair import of a contract that they shall be sent with the goods.
Free access — add to your briefcase to read the full text and ask questions with AI
Cooley Ch. J.
I am not satisfied that there is any thing in the contract upon which the plaintiffs below declared, which is beyond the scope of the ordinary business of the forwarder; and if not, there can be no question of the defendant’s liability upon it, since his clerk, left in charge of the receipt of goods, must be presumed to have authority to make all such contracts as are usual and proper in the business in which he was employed; and this presumption, in the absence of any-knowledge by plaintiffs of restrictions upon such authority, must be conclusive.
It was always the duty of the forwarder to accompany the delivery of goods to- the carrier with such instructions, communicated to him for the purpose, as should seem necessary to ensure their carriage and delivery according to the wishes of the consignor; and these instructions were expected to govern the action, not only of the first, but of any subsequent carrier, until the goods should reach the hands of the ultimate consignee. It is true that carriers formerly were not expected to be collecting agents, nor forwarders to send on bills for collection; but when a new element was introduced into the carrying trade of the country by the establishment of organizations who not only carried property, but also acted as agents for the consignor in collecting from the consignee the price thereof, the proper and safe transaction of this business required that information respecting the charges, with the proper instruc-tions not to deliver until they were paid, should accompany the property itself; as the delivery would be expected to be unconditional unless such instructions were had.
The bringing of this new element into the carrying trade does not, of course, oblige the ordinary carrier to become a collecting agent also; but when his operations extend over a part of a line where goods are to be sent, and he is to be the medium of their delivery to an organization which is both carrier and collecting agent, there is nothing [502]*502in the nature of the necessary instructions to such second carrier which makes them foreign to his business, or which makes it improper for the-forwarder to send or the carrier to take them. Such instructions are not of a new class or species from those which it is customary for a forwarder to insert in the bill of lading; they pertain to the carriage and delivery; and they can no more be considered aside from his ordinary business than would any other direction be, which did not happen to be usual in former times. A separate bill is not necessarily sent; and it is evident from the manner in which Mr. Ladd prepared the papers, that he neither expected nor desired a separate bill to be sent in the present case.
The case, then, plainly stated is this: A forwarder has property delivered to his clerk to be sent by a common carrier to a certain point, and there delivered to another carrier, with directions qualifying or imposing restrictions upon the delivery by the latter. I think the sending forward of such instructions with the property is fairly within the general scope of the forwarder’s business, and that his clerk must, therefore, be assumed to have had authority to make a contract to that effect. Undoubtedly the forwarder may decline to make airy such contract; but a local custom not to make them, or instructions to the clerk to that effect, can not be binding upon a party who has no knowledge of such custom or intsructions. He deals with one who he has a right to assume is vested with authority to make any proper contract concerning and properly connected with the forwarding of goods; and this is- one of' that character.
' But if I thought differently upon this point, I should still think the Circuit Judge was correct in charging the jury that there was evidence fairly tending to show the making by the defendant of the agreement the plaintiffs had counted upon. The receipt of the property by the defendant’s clerk under the special instructions is not [503]*503disputed; but his authority to consent to send as directed is denied. The instructions to him were in writing, and they constituted the only means, so far as the jury were informed, by which the defendant was to ascertain who was the consignee, or to what place the property was to be sent. It is admitted that after the cleric had received the property under these instructions, the defendant forwarded them by common carrier to Saginaw, complying with the directions in all respects except in not accompanying them with a statement of the plaintiffs’ charges. It is not indeed stated that this was actually done by the defendant in person, instead of by his cleric or servant, but I think the jury were fairly at liberty to infer this from the evidence. And if so, they must also infer that he was aware of the instructions; and if he was, and saw fit to forward the property at all, I think the jury were right in holding him bound by those instructions. If the clerk exceeded his authority in making the special contract, the defendant, when it was brought to his notice, was at liberty either to affirm or repudiate it; but he could not affirm it in part and disaffirm the remainder without the consent of the plaintiffs. He entered upon the performance of the contract without apprising the plaintiffs that he disavowed any portion of it; and if he did this with knowledge of the facts, as the jury might fairly infer that he did, then he must be held to have affirmed the clerk’s action. Whether the evidence in the case is sufficient to satisfy us on this point, is another question. I only say that I discover no error in the charge of the Circuit Judge upon it.
A question of more difficulty, perhaps, is whether the plaintiffs were entitled to recover any thing more than nominal damages for the breach of the agreement. In the court below they were allowed to recover the full amount of their charges against Martin, the ultimate consignee. It appears that the carrier did not deliver the property, according to his instructions, to the Express Company, but [504]*504handed it over directly to Martin. Defendant claims that the loss by the plaintiffs of their demand against Martin was not the direct and natural result of the breach of contract counted upon, but that if the instructions had been sent and the carrier had disobeyed them, as he did those actually received, the same result would have followed. The loss, therefore, it is said, happened not from the failure of defendant to perform his contract, but from the mis - delivery of the goods by the carrier. The plaintiffs reply that the carrier, not receiving any instructions which made the express company any thing more than mere agents for the delivery to Martin, might well feel justified in making personal delivery without their intervention; and that it is not to be assumed that he would have disobeyed directions in which any one appeared to have a beneficial interest. The defendant also claims that he would have complied fully with the contract if he had forwarded the instructions to the express company along with the goods in a sealed envelope; but I think otherwise. Instructions respecting carriage and delivery are usually inserted in the bill of lading; or so transmitted that each carrier through whose hands they pass is informed of them; and that is the fair import of a contract that they shall be sent with the goods.
Were, then, the damages of the plaintiffs too remote to be legally chargeable to the breach of the contract? In determining this it may be well to bear in mind that the very purpose of the plaintiffs in requiring the agreement which has been broken, was to prevent the precise loss which has been suffered. The directions were to be sent to prevent a delivery to Martin without payment of charges whereby plaintiffs would lose their demand. They were not sent, that delivery was made, and the plaintiffs lost their demand. The damages which the plaintiffs have suffered are the very damages which were within the contemplation of the parties and against which the contract was to protect' them. How then can they be said to be too [505]*505remote to follow, legally, on breach, of the contract? True, if some other things had not intervened, the loss might not have occurred; but that damage can not be said to be too remote for recovery on the breach of a contract proper in itself, which was the only damage the parties had in view in making the contract, and to prevent which was the only occasion for the agreement which has been broken. See Hadley v. Baxendale, 9 Exch. 341.
I find no error in the' record, and think the judgment should be affirmed.
Graves J. concurred.
Christianoy J. did not sit.
Campbell J.
I think that the memorandum left with Hutchings does not disclose any thing from which it can be inferred that he was expected to give any instructions to the American Express Company, who had no 'duties of carriage to perform. If it imposed any duty on him to make any provision for the collection of the bill of purchase, I think it was to include it in the amount to be collected by the carrier. The memorandum requires the money to be collected on delivery, and inasmuch as the only delivery which can be anticipated in a forwarding contract is a delivery by the carrier, it seems to me that is the utmost effect which can be given to the receipt, and this is not the-contract declared on. I have seen no authority which sanctions the idea that a bill of lading can properly include directions concerning the duties and responsibilities of consignees after delivery to them, and I believe it to be unprecedented.
But if the contract should be deemed proved, as alleged, the damages in no sense resulted from the breach declared on. The carrier undertook to deliver the property to the [506]*506American Express Company, and there was evidence from which it was probable that if the goods had been delivered to them there would have been no loss. At all events, until delivered to them, there could be no damage caused by failure to notify them what steps to take in collecting the bill from Martin. This loss may or may not have occurred had the carriers done their duty. Their knowledge of the conditions of the consignment would in no' way have changed their duty, and the loss is no more the result of a failure to forward instructions, than it would have been had the vessel foundered. An agent is liable for anything which results from his fault, but he is not liable for anything not so resulting.
I think the judgment was erroneous.