Mayall v. Boston & Maine Railroad

19 N.H. 122

• Court: Superior Court of New Hampshire
• Decided: July 15, 1848
• Status: Published

Opinion

Gilchrist, C. J.

The case finds that there was evidence tending to show that packages, not belonging to passengers, were carried by the passenger train from the passenger depdt, and that the bonnets in question were delivered by the plaintiff’s agent at the passenger depdt, at Dover, to the defendant’s baggage master, whose duty it was to take charge of all the baggage of passengers and of all merchandize to be transported by the trains, and that they were by him put upon the cars for Great Falls.

The instruction of the court is, in substance, that if the plaintiff employed her own individual agent to carry the package on his own account, the defendants would not be responsible ; but if it were delivered to the general agent of the defendants, to be transported by them for hire, they would be liable, notwithstanding they might have given private instructions to their general agent that packages should not be sent by the passenger trains on their account, but should be on the individual account of the person undertaking to transport them, unless such instructions were .known to the plaintiff or to the public generally.

This instruction is undoubtedly correct. Any arrangement made between a carrier and his servant, by which the servant is to be paid for the carriage of particular parcels, will not exempt the carrier from responsibility for the loss of them, unless such an arrangement is known to the owner thereof, so that he contracts exclusively with the servant. Allen v. Sewell, 2 Wend. 327. So the mere fact that the driver of a stage coach is accustomed to carry articles for hire, for his own particular advantage, will not render the proprietors of the coach liable. Bean v. Sturtevant, 8 N. H. Rep. 325. Whenever it appears that there is no intention to trust the carrier with the custody of the goods, he will not be held liable. Brind v. Dale, 8 C. & P. 207. This doctrine is the dictate alike of common sense and of justice. It is the party only with whom the contract is made, who incurs any liability to the owner of the goods. The mere fact that the bailee is in the employ of a railroad corporation is not sufficient to make the corporation liable.

Where, however, the corporation have a general agent, who is employed by them for the express purpose of receiving and transporting merchandize for hire, and is held out to the world as invested with authority for this purpose, if goods are delivered to him to be transported in the way of his duty, the corporation will be liable for the manner in which that duty is performed, and the contract of bailment may be regarded as made with them. In the present case there was such a general agent. It was his duty to take charge of all the baggage of passengers, and of all merchandize to be transported by the defendants, and a delivery to him was a delivery to the corporation.

The defendants contend that all packages not belonging to passengers going by the passenger train, were carried by the brakemen, firemen and others, on their own individual account, and that the corporation received no compensation when goods were thus transported. No private instructions or agreements between the corporation and their servants, not published to the world at large, nor communicated to the plaintiff, could affect her right to recover. A contrary doctrine would seem to infringe upon the principle that a person cannot be bound by a contract to which he is not a party.

The instruction of the court is, that if the bonnets in question were delivered to the defendant’s agent, who had authority to receive and forward them, the defendants would be liable. This doctrine seems to be incontrovertible. If the jury believed that such facts existed in the case, notwithstanding the evidence offered by the corporation, they could not avoid returning a verdict for the plaintiff.

In relation to the interest of the plaintiff in the bonnets, it appears from the case that she carried on business in her own name; that she had possession of the bonnets, and delivered them to the agent of the defendants. Now whether some other person was or was not interested in the business, is entirely immaterial. The contract was made between the defendants and the plaintiff, and not between the defendants and any other person. She may or may not be answerable to some third person for a part of the damages she may recover from the defendants. The legal interest in the contract resides in her, and she is the proper person to enforce it. If a person has a beneficial interest in the performance of a contract, or a special property or interest in the subject-matter of the agreement, he may support an action in his own name upon the contract. Brown v. Hodgson, 4 Taun. 189; Shields v. Davis, 6 Taun. 65; Joseph v. Knox, 3 Camp. 320.

In the case of Freeman v. Birch, 1 Nev. & Man. 420, the plaintiff, a laundress, was in the habit of sending linen to London by the defendant’s cart. On one occasion a basket of linen, belonging to one S., was sent by the defendant’s cart, and on its way to London parts of the contents were either lost or stolen. S. did not pay the carriage of the linen, and it was objected, on the part of the defendant, that the present action was misconceived, and that the action should have been brought by the owner of the linen. But the court held that, under the circumstances, the bailee must be taken to retain a special property in the goods sufficient to support the action.

Even if we suppose, in the present case, that some third person had the entire ownership of the property as against the plaintiff, upon the above principle this action may be maintained.

Judgment on the verdict.