Burtis v. . the Buffalo and State Line Railroad Company

Denio, J. The effect of the finding of the referee is, that Starke, the defendants’ freight agent, had authority to make any contract for the transportation of property which the defendants could lawfully make by any instrumentality whatever. The language of the finding is, that said Starke was the defendants’ acting freight agent, or master of transportation, and, as such, was authorized to receive property, to make contracts for such transportation, and to act as the general agent of such Company in that department of its business. We are to intend that this determination of the question touching his authority was warranted by the evidence; as we are not allowed to review the ease upon questions of fact. There is nothing in the finding to qualify the comprehensive language to which we have referred; and, as has been said, it embraces the power to make any contract for transportation that the ‘ corporation had a right to make. *271 The making of a contract By which the defendants, By Starke as their agent, undertook to transport the trees from Buffalo to Chicago in three days, and the breach of that contract, is also established by the special finding of the referee. The single question remaining to be examined is, whether the defendants’ corporation had power to enter into such a contract. If we should deny the existence of that power, it might then become a question whether the defendants could excuse themselves from the consequences of the breach of a contract actually made in their name, by their duly authorized officers and agents, on the ground that it was without the scope of their corporate power. That would require a reexamination of the points discussed, but not decided, in Bissell v. The Michigan Southern, &c., Railroad Companies (22 N. Y., 258) ; but, in the view which I take of the case, these questions will not arise, for, in my opinion, the defendants had express legislative authority to make the precise contract upon which the present action was brought. ' By an act passed in 1847 it is provided that, wherever two or more railroads are connected together, any company owning either of said roads receiving freight to be transported to any place on the line of either of the said roads so connected shall be liablé as common carriers for the delivery of such freight at such place. The act further declares that, in case any such company (that is, the company receiving the freight) shall be liable to pay any sum by reason of the neglect or misconduct of any other company or companies, the company paying such sum may collect the same of the companies by reason of whose neglect or misconduct it became so payable (ch. 270, § 9). The defendants’ counsel argue that the statute does not apply where the connection, as in the present instance, is between a railroad in another State and one of our own roads, because the indemnity which is conferred upon the company Which shall pay damages, against the delinquent company, cannot be enforced against a company in another State, it not being within the scope of our legislation or amenable in our courts; and that, for the same reason, freight embarked on a *272 foreign railroad, to be carried over a road in this State running in connection with it, is not within the protection of the act. Hence it is insisted that such inter-State lines of railroads are not within the purview of the statute. This reasoning, though somewhat cogent, is not quite satisfactory to my mind. The act is eminently a remedial law, and should receive a liberal, as distinguished from a narrow, construction. It was, of course, known to the legislature that continuous lines of railroads, connecting this with conterminous States, had been and would continue to be constructed. The largest commercial town and the most active seaport of the Union being in this State, it was, of course, apparent that a very large amount of traffic between this and the neighboring States would pass over these interstate lines. The motives which led to the enactment of the law applied quite as strongly to such lines of roads as to those which had their courses wholly in this State. A considerable proportion of all the'" merchandise sent by railroad .from the city of Hew York passes into other States upon continuous lines of- railroads, such as those referred to in this act. I think it was not intended to impose the responsibility mentioned in the statute upon any of the railroads against the consent of the company owning them. The language is, that a railroad company, “ receiving freight to be transported” to a place on the line of another road, shall be liable, &c. This, I think, is limited to cases of a company receiving property and agreeing, expressly or by implication, to carry it to a place on another connecting road. Should the company' on whose road the property was first embarked, limit its undertaking to the line of its own road, the act would not apply, though it should be in the course of a transit to a place beyond its terminus, and should be directed to such place. The act, in my opinion, means, that if a railroad company will agree to carry property beyond the terminus of its own road, and receive the goods under such an agreement, it shall be liable as a common carrier for the delinquencies of the road running in connection with it on the route to the place of delivery. Any other construction would make the company receiving the property liable *273 for the fault of the connecting road, contrary to the contract between it and the owner of the property; which could not have been intended. Upon the construction suggested, the true sense of the act is, that the company, on whose road the property is first sent forward, may agree for its transportation to a point on another road which connects with it, and that, in such a case, the first-mentioned road shall be liable as a carrier for any breach of duty respecting the property, whether it happen on the other road or on its own; but, if it occur on the connecting road, the owners of that rpad shall be responsible to the one which has become liable to the owner for the amount paid on account of such liability. The company receiving the goods may not be satisfied with the indemnity thus proffered, on account of the pecuniary circumstances of the company made liable, or because such company is not bound by the act, or not within the jurisdiction of our courts, or for any other reason ; but, in either case, it may refuse to receive the goods “ to be transported” to a place beyond its own line, and limit its engagement to carrying them to the end of that line and delivering them to the road next in order towards the place of final destination. Where, as in this case, there is an express contract to carry to a place on the line of another road, the case is within the spirit as well as the language of the act; and if the indemnity by action against the other company is not satisfactory, it is the fault of the party accepting it instead of limiting its contract to the line of its own road. The legislature afforded all the indemnity which it was in its power to give; and it left the receiving company free to contract in such manner as to need an indemnity, or to refrain from so contracting. There is more difficulty in applying the act to a transit of property from another State into this; the company on which the goods are embarked not being subject to our laws in respect to. a transaction out of our jurisdiction. It may be that the legislatures of the adjoining States have provided, or will provide, by similar legislation, for traffic originating in those States; but, however this may be, we can clearly establish the law for companies operating roads in this State. As *274 to these, the question is one of construction, and not as to power; and I cannot see any good reason for holding that domestic roads, running in connection with roads beyond the State, should not be considered within the statute. There is another view of the case, which seems to me satisfactory. The act assumes, by an irresistible implication, that railroad companies may make valid contracts for the delivery of property at places on other roads beyond the route of their own. This is, itself, an answer to the defence of ultra vires, which is the only answer which can be interposed to this action.' 'I am for affirming the judgment of the Supreme Court. Wright'and Smith, Js., concurred, putting their judgment upon the effect of the statute; Davies, Gould, and Allen, Js., also concurred as well upon the construction of the statute as upon the validity of the contract independently of the statute.