Lake S. & M. S. Ry. Co. v. Hochstim

67 Ill. App. 514, 1896 Ill. App. LEXIS 146

• Court: Appellate Court of Illinois
• Decided: January 7, 1897
• Status: Published

Opinion

Mr. Justice Waterman

delivered the opinion or the Court.

The carrier having, after being informed as to the character of the articles, received them as baggage, is liable for their loss, although they consisted of merchandise. Hutchinson on Carriers, Sec. 685, note 1; Hannibal Ry. Co. v. Swift, 12 Wall. 262-274.

That the articles lost were actually the property of the plaintiffs, the employers of the traveler, was immaterial to the defendant.

The witness doubtless spoke as is customary with traveling men concerning their samples, calling them his samples, his baggage.

The shipment was really made by the plaintiffs, qwi faoit per alium faeit per se. The undiscovered principals had a right to declare themselves and sue upon the contract. Ewell’s Evans on Agency, side paging, 304, 379, 395; Conklin v. Leeds, 58 Ill. 178; Barker v. Garvey, 83 Ill. 184; Elkins v. Boston & Maine Ry., 19 N. H. 337; New Jersey Steam Navigation Co. v. Merchants Bank, 6 Howard, 344.

The case under consideration is radically variant from what it would have been had not the carrier been notified that the cases contained merchandise samples.

Ho fraud was perpetrated upon the carrier; on the contrary, it well knew what it undertook to carry, and upon what consideration; while that the actual ownership was undisclosed, was, as we have said, immaterial.

Appellant promised to safely carry and deliver these goods in April, 1891.

By the failure of appellant to fulfill its contract, appellee was five years deprived of merchandise of the value of $270.91.

In its discretion, the court properly allowed interest. Chicago & N. W. Ry. Co. v. Ames, 40 Ill. 249; Bradley v. Geiselman, 22 Ill. 494.

The judgment of the Circuit Court is affirmed.