Parmelee v. Western Transportation Co.

26 Wis. 439

• Court: Wisconsin Supreme Court
• Decided: June 15, 1870
• Status: Published

Opinion

Paine, J.

We do not think there was sufficient evidence to justify the court below in submitting to the jury the question whether the defendant made a through contract to transport the goods to Delavan, Wisconsin. The receipt given by Hutchins did not purport to be a contract of transportation. It stated that the property was received in store; and whatever contract it imported was as forwarder, not as carrier. The only thing in it tending to the contrary conclusion is the statement of the price of freight from Buffalo. But that appears to be nothing more than a memorandum, and may well have been added as such merely, as Hutchins testifies that it was, he having at the time a circular showing the rates of freight from Buffalo.

And the fact that it states only the freight from Buffalo, indicates very strongly that it was understood that the transportation to Buffalo might be by a wholly separate and distinct contract from that from Buffalo to Wisconsin. It does not purport to be any contract by Hutchins as agent of the' defendant. And if it should be held to amount to a contract by him, as to the amount of the freight beyond Buffalo, it is quite as consistent with the fact that it was made by him as agent of the line which actually transported the property from that city, as it is that it was made as agent of the defendant. And the evidence is just as strong that he was the agent of all- responsible lines as of the defendant. There is no sufficient proof to justify a finding that he was agent of the defendant, or contracted as such. All that the plaintiff, knew about it was, that he shipped goods by this company, and received goods for them. But every forwarder does that as to every company by whom he forwards, or from whom he receives goods. But that is not sufficient evidence to justify an inference of authority to contract for them as carriers.

The defendant was a company engaged in the business of transportation by canal to Buffalo. The only contract with which it seems to have been sufficiently connected, was the shipping receipt given by the master of the canal boat to Hutchins. On the shipping bill then made out, the price of the freight to Buffalo, amounting to $3.04, was all that was marked.

The shipping receipt, after reciting that the boxes were marked “E. M. Parmelee, Delavan, Wisconsin, care W. W. Arnold, Buffalo,” provided that they were “ to be delivered in like good order, without delay, as addressedThis is one of that class of contracts which cannot be properly understood except in the light of the surrounding circumstances. It might, under some circumstances, be held to be a contract to deliver at Delavan. Under others it would be a contract only to deliver at Buffalo. Upon the facts here presented, — that the receipt was given by a canal boat; that Buffalo was the terminus of the canal; that the property was addressed to an intermediate consignee at Buffalo; and that the amount of freight fixed in the shipping bill, included only the freight to Buffalo — we think it was the duty of the court to say that the undertaking in this receipt, to deliver “ as addressed,” had reference only to the address at Buffalo, and that it consequently was not a through contract.

On the whole, there does not seem any sufficient proof that Plutchins was authorized to contract as carrier for the defendant, or, if so authorized, that he did make any through contract in that capacity, to warrant the court in submitting these questions to the jury.

If the property was lost before it arrived in Buffalo, the defendant would of course have been liable. But as the case was submitted to the jury upon the theory that they might find a through contract, and hold the defendant liable wherever the loss may have occurred, the judgment must be reversed, and a new trial had.

By the Court. — Judgment reversed, and a new trial awarded.