East Tennessee & Georgia Railroad v. Montgomery

Lochrane, Chief Justice. James Montgomery brought his action against the East Tennessee and Georgia Railroad Company to recover damages resulting from the delay in transportation of cotton [282] from Rome to the city of New York. The damages proven and found by the jury amounted to $2,000. Upon,a motion for a new trial various grounds were assigned, all, however, controlled by legal principles involved in the construction of a letter set up, with the surrounding facts, as an express or special contract, upon which the liability of the defendant below is predicated. The proof shows that Montgomery shipped the cotton from Kingston, Georgia, at a station on the Western and Atlantic Railroad, consigned to parties in New York. The cotton was received in due course at Dalton, by the East Tennessee and Georgia Railroad, and was, by them, transported over their line to their terminus at Kuoxville, and, as in good order and in due time, delivered to the connecting road en route, or the East Tennessee and Virginia Railroad Company. The delay occurred after it left the custody of the defendant and its delivery to the connecting road. Under our Code, section 2058, defining the liability of railroads, this defendant was liable only to its terminus and for the delivery of the property to the connecting road in good order. But the difficulty of this case, if any exists, originates in the fact that A. A. Talmadge, Superintendent of the East Tennessee and Georgia Railroad Company, on the 25th October, 1865, and previous to the shipment, addressed a letter to Mr. Bayard, of Rome, in which letter he says: “Yours of the 21st came duly to hand. In reply, I will say that arrangements are perfected for sending cotton through to New York via East Tennessee and Georgia and connecting lines to Alexandria by rail, and from thence, by steamer, without detention, and with less transfers than any other line. There are three regular lines of steamers running from Alexandria to New York, so that there will not be any detention at that point. Our rate from Dalton to New York on cotton is nine dollars, ($9 00) per bale. Hoping to secure a liberal share of business from Rome, I am, etc., “A. A. Talmage, Superintendent.” [283] This letter was shown or read to Montgomery, and he, acting upon it, sent his cotton from Rome to Kingston, at which latter point it is forwarded through as freight. Did this letter constitute an express contract, by which the general liability of the East Tennessee and Georgia Railroad was increased as to Bayard, the party to whom it was addressed ? I think it did. It contained a proposition in writing to transport cotton to New York. This was its fair purport of construction. It presented inducements to secure the shipments. It was addressed to him, and when accepted by him, either by a response in writing or by acts equivalent, as by shipment of his cotton, my opinion is it was an express contract upon the part of the road, and accepted by him to carry his cotton to New York, and I think the railroad company, taking the benefits under it, would be, in law, justly bound, by its terms. But, conceding this proposition, did the reading of this letter to Montgomery make the defendant occupy, as to him, the same legal status or relationship? I think not. It is true, the letter concludes by hoping to receive patronage from Rome; but this could not fairly be held to constitute a contract for carriage with any party in Rome who may have seen, read, or heard read this letter. Therefore, in itself, it did not constitute any contract between a stranger and the railroad company. What other proof is developed by the' record to aid in giving to this letter that effect? Montgomery acted upon it by sending his cotton en route over that road, and by the line indicated. This is all. But Montgomery, in acting upon it, delivered his cotton to the railroad at Kingston, and from that point it went over the East Tennessee and Georgia Railroad, as any other freight, and, consequently, did not come within any notice or knowledge of the railroad company, that it was shipped by express contract with them, invoking their attention farther than over their own line and to the connecting line at their terminus, receiving it “as in good order.” Therefore neither the seeing of the letter, nor the mode of shipment, constituted an express [284] contract as between the railroad company and Montgomery. The link which is absent and nowhere seen by the evidence, is notice by Montgomery of the shipment, as included in the terms of the letter to the railroad company. If Montgomery, being advised of this letter, and properly construing its terms to be a proposition to ship through to New York by connecting lines, and inviting shippers from Rome to patronize it, upon such terms, had notified the East Tennessee and Georgia Railroad that he had so shipped to them, under the proposition contained in the letter to Bayard, then, by this notice to them, he would have been entitled to claim the damages occasioned by the delay upon the line, even though accruing after it left the hands of the defendant and was delivered to connecting lines. It is useless to discuss the doctrine of railroad liability by express contract. This I did in cases at the last term. I simply, in this case, confine myself to the facts and the opinion I entertain upon them as to whether this letter, under the evidence, constituted an express contract. And, with the view I hold, it is unnecessary to travel through the various assignments of error to the charges of the Judge. I think the law of the case entitled the party to a new trial upon the main and controlling ground in the case. In relation to the judgment of the Court refusing to strike out the interrogatories of Montgomery, only so far as they related to memorandums not attached, I am of opinion the decision was correct. Under section 3835, all exceptions to the execution must be made in writing, and notice given before the trial, when the interrogatories have been in office, etc., and when a witness answers from memoranda, under section 3831, such memoranda should be sent with the commission and certified to by the commissioners. These objections were made upon the trial, and the defect went to the execution, and when made upon the trial, the ruling of the Court accomplished substantial justice, by rejecting the questions improperly answered, but receiving that not subject to the objection. Judgment reversed.