Newell v. Smith & Clark

49 Vt. 255

• Court: Supreme Court of Vermont
• Decided: January 15, 1877
• Status: Published

Opinion

The opinion of the court was delivered by

Powers, J.

The defendants were receivers in chancery of the .property of the railroads employed in partin the-transportation of the goods in question. In the operation and management of the roads, they sustained to persons dealing with them the character of common carriers. They at all times might invoke the aid of the Court of Chancery in any matter affecting their duty or liability under their trusteeship; waiving this, they are amenable in the common-law courts to actions for negligence as carriers. We have no occasion nor inclination to modify the doctrine heretofore announced by the courts upon this subject. Blumenthal v. Brainard, 38 Vt. 402 ; Morse v. Brainard, 41 Vt. 550 ; Cutts v. Brainard, 42 Vt. 566.

A carrier of freight who expressly contracts to deliver goods at a destination beyond the terminus of his own road, is answerable for the negligence of any connecting road ih the line of transportation. Such carrier, so contracting, employs such agencies to effect the transportation as he pleases, and thus makes the connecting'lines employed by him, his agents or servants, for whose default he is responsible to the same extent that he is for that of his own immediate employes.

Appleton is conceded to have been the general agent of the defendants, fully authorized to execute and sign contracts like exhibit A. If this contract had been executed by him, it would, confessedly, have been binding upon the defendants. The contract was in law executed and signed by Appleton; Storrs was a freight clerk under Appleton. “ The executing of such receipts was a part of his business.” His signing Appleton’s name to this' receipt, under the authority he had, was in law Appleton’s act. Qui faoit per alium fácil per se. It was Appleton’s contract then, not Storrs’s, and as such, binding on his principals.

The conditions on the back of exhibit A, are not referred to on the face of the instrument, and there is nothing in the case to show notice to the shipper of their existence. The face of the instrument imports an absolute and express undertaking; and evidence modifying this undertaking should come from the party apparently so bound.

The evidence received to show the ordinary time for the transit from Burlington to Chicago was proper. Under the contract, the defendants were bound to forward the'goods with the usual expedition. What that usual time was, was matter peculiarly within the knowledge of the defendants themselves, and in the absence of contradictory evidence from them, slight evidence of this fact will be sufficient for the purpose of the plaintiffs.

The evidence tended to show negligence of the defendants in respect to the time employed in transporting the goods. The meashre of damages for such default is the difference between the value of the goods at the place of delivery at the time they ought to have arrived, and their value at the time they in fact arrived. Ward v. New York Central R. R. Co. 47 N. Y. 29; Deming v. Grand Trunk R. R. Co. 48 N. H. 455 ; Cutting v. Same, 13 Allen, 531. The value of the goods means their market value. If that value has fallen while the goods were negligently delayed in the transit, such loss is a direct consequence of such delay. In fixing the damages, it is proper to take into view the time when the injury and loss occurred, and to allow as damages, interest from that time We think the question of damages was rightly settled by. the referee. Lansent v. Vaughn, 30 Vt. 90; King v. Woodbridge, 34 Vt. 566 ; 18 Am. Rep. 8. Judgment affirmed.