Union Railroad & Transportation Co. v. Riegel & Co.

The opinion of the court was delivered, February 3d 1873, by Mercur, J. The first and second assignments of error are not sustained. The 3d, 4th, 5th and 6th will be considered together. They all relate to the ascertainment of the contract under which the merchandise in question was delivered to the defendants. The plaintiffs gave evidence that Furniss & Co., of Indianapolis, desired to purchase goods of them upon a credit. Not being satisfied as to their solvency, plaintiffs made an arrangement with Mr. Welsh, agent for the Union Railroad & Transportation Com [79] pany, before delivering the goods for transportation, by which the boxes should be marked “[F] Indianapolis, Indiana, care of S. F. Gray, Agent,” and should not be delivered to Furniss & Co. until further orders from plaintiffs. The boxes thus marked were delivered to the defendants. The plaintiffs claimed this to be the contract under which they delivered, and the defendants received, the goods. The defendants gave evidence that when the drayman subsequently, upon the same day, delivered the goods to them, he brought and presented for their signature, a shippers’ receipt, filled up by plaintiffs’ shipping clerk, in which the boxes were described as marked “ [F] Indianapolis, Indiana. For J. Furniss & Co., care S. F. Gray, Agent.” Upon the face of the receipt it declared they were “ to be carried and delivered upon the the terms and according to the agreement as specified on the back of this receipt.” Upon the back of this receipt, inter alia, is printed, “it is agreed and is part of the consideration of this contract, “1. That all goods received for transportation shall be * * * distinctly marked with the name of the consignee, and the station where and to whom consigned.” That the defendants signed said receipt and returned it to the drayman, who took it back to the plaintiffs. This direction, as contained in the receipt, was substantially copied into the manifest which was sent on to Gray. It appears that upon the arrival of the goods Gray delivered them to Furniss & Co., who soon after failed and the goods were lost to the plaintiffs. The counsel for the defendants requested the court to charge the jury that the said shippers’ receipt superseded the arrangement made with Mr. Welsh respecting the consignee of the goods. The court declined so to charge. In this was no error. We think, however, the court did err in saying to the jury that the contract depended entirely upon the verbal arrangement. The court thus withdrew wholly from the consideration of the jury the shippers’ receipt which was executed after the verbal arrangement. The receipt, as well as the verbal arrangement ought to have been submitted to the jury to enable them to find from the whole evidence, what the true contract was. The 7th assignment is not sustained. It assumes the receipt alone embodied the terms of the contract. Whether the agent was authorized to deliver the goods, depended not upon the receipt alone, but upon what the jury found the contract to be under the whole evidence as we have indicated. Judgment reversed, and a venire faeias. de novo awarded.