Garberson v. Trans-Continental Freight Co.

Hadley, C. J. — This is an action for damages arising out of a contract concerning the shipment of household'goods. The plaintiff shipped the goods by the Erie railway from Marion, Ohio, to Chicago, where they were transferred and delivered into the possession of the defendant. The defendant was engaged in the business of assembling car load lots of goods for shipment to different parts of the United States, the purpose being to serve those who had less than car load lots, and enable them to avail themselves of car load shipping rates. The defendant is a corporation under the laws of Illinois, and the complaint alleges, that it maintains an agency office in Se [214] attle in this state; that on March SI, 1906, at Chicago, it entered into an oral agreement with the plaintiff whereby it undertook to safely and carefully ship and deliver to the plaintiff at Seattle, without loss or damage, his household goods, furniture, and effects, for the agreed price of $160, which was paid in advance as full and complete payment of all charges for cartage, storage, and re-loading at Chicago, railway freightage from Chicago to Seattle, and including also all charges for unloading, storing, and delivering the snoods lo the plaintiff by the Bekins Moving and Storage Company, in Seattle, which latter compan}' the defendant represented to plaintiff was the defendant’s agent in Seattle for such purpose; that the said Seattle agent would, without additional charges, deliver the goods to plaintiff at any point in Seattle within the radius of any reasonable distance therein, on demand by plaintiff of the agent at any time within four days after notice of the arrival of the goods in Seattle; that the goods were received and accepted by the defendant upon the above agreement and terms, and upon no other or further condition whatever; that notwithstanding the agreement, the defendant so carelessly handled the goods while in its possession and control and during transit, and while in the possession and control of plaintiff’s Seattle agent, that it failed to deliver them without damage, but that they were damaged to the extent of $348.10. A second cause of action alleges that the defendant’s Seattle agent, the Bekins Moving and Storage Company, exacted from the plaintiff the payment of the additional sum of $57.50 for cartage and storage in Seattle before it would deliver the goods at the plaintiff’s residence in Seattle, although demand for their delivei'y was made upon the day of their arrival in Seattle. It is averred that the amount was paid under protest and in order that the plaintiff might secure the possession of his goods for immediate household necessities. Recovery of theoamount so alleged to have been paid is sought, and judgment is demanded for the aggregate sum [215] of the above items. The answer denies the material parts of the complaint, and under such issues the cause was tried by the court without a jury, and resulted in a judgment for plaintiff in the sum of $210 on the first cause of action, and in the further sum of $57.15 on the second cause of action. The defendant has appealed. The court made findings of facts and conclusions of law, and the assignments of error are mainly based upon these. The evidence sharply conflicts as to the true nature of the contract, but respondent and his wife each positively testified in support of the contract as alleged in the complaint. Both were present when the agreement was made in Chicago, and the record discloses no reason why the trial court should have discredited their testimony. The court found that the contract was in all essential particulars the same as set forth in the complaint, and that respondent was entitled to recover the amount of damage done to the goods, and also to recover back the cartage and storage exacted from him in Seattle by appellant’s agent. We shall not disturb the findings. The contract was, therefore, a straight undertaking to deliver to respondent in Seattle the goods in question without damage, and to cart them to his home, which was shown to have been within reasonable distance, without further charges. Under such a contract it was immaterial whether appellant was a mere forwarder or a forwarder and distributer. It undertook to do a special thing, and it was obligated, like any other person, to carry out its undertaking without regard to what name it may use in designating its business. In this respect the case is similar to cause No. 7532, Lee v. Fidelity Storage & Transfer Co., just decided, ante p. 208, 98 Pac. 658, and what was there said with reference to a similar contract made by one engaged in a similar business is applicable here. It is assigned that the court erred in refusing to allow appellant to show what the railroad rates were for shipping second-hand household goods from Chicago to Seattle, for [216] the purpose of showing the probability of what the contract between the parties was. We think such evidence was too remote and uncertain for that purpose. It certainly was immaterial for any other purpose under the issues, and when the possibility of sharp competition in-rates between forwarding and shipping companies is considered, it will be seen that the offered evidence might not have throAvn any light upon what the real contract was, and it might have been actually misleading. The judgment is justified by the record, both as to the right of recovery and as to the amount of damages, and it is therefore affirmed. Fullerton, Crow, and Dunbar, JJ., concur. Chadwick, J., took no part.