Great Western Railway v. Wheeler

Graves, J. The defendant in error sued the company to recover the value of two casks of zinc brought over the railway and deposited in the depot of the company on the 14th day of April, 1866, and destroyed by the fire which consumed the depot on the night of the 26th of the same month. The goods were marked “ W. W. W.” and had nothing else upon them to indicate to whom they were consigned. In consequence of this the company claimed that they had no information as to the consignee, and could do nothing more than to warehouse the goods on their arrival, until the consignee should appear, or in some way be pointed out to them. The defendant in error urged that the company were chargeable with notice, that goods marked as these were, were meant for him, and in order to prove this, he testified that, occasionally from September, 1863, to November, 1865, the company had brought zinc for him, marked like that in question, and that in more than one instance it had been de [423] livered to him by the company without his interference. He further testified that on two or three earlier occasions, he called for zinc, which he then expected, and saw the agent on the subject, who, he says, knew his mark perfectly well. He did not recollect who this agent was, but thought it was McDonnell. The witness was unable to fix the date of any of these interviews or deliveries. The company gave evidence with a view to show that none of their agents, in April, 1866, had any knowledge that the mark upon the zinc in question, signified the defendant in error, and further gave evidence to prove that it was the business of the delivery clerk to attend to the delivery of goods to consignees, and that such clerk had been several, times changed within a year or two before the fire, and that the clerk employed in the month of April, 1866, had been in the company’s service for some time before. In view of the testimony given on this subject, the Court at the instance of the defendant in error, instructed the jury as follows: “ If the jury find that the defendants had frequently received, transported and delivered to plaintiff before the shipment of the goods sued for, goods of the same nature and description, and marked in the same manner, it is evidence tending to show that the company’s agents knew that “W. W. W.” was the shipping mark of plaintiff. ” The plaintiffs in error then requested the Court to charge that “the plaintiff is bound to show that some of the officers or agents of the company, who were such when these goods arrived here, were chargeable with notice that they were intended for the plaintiff. It is not enough to show that former officers or agents were chargeable with such notice.” But the Circuit Judge being in doubt, as he stated to the jury, about the law involved in this request, refused to give the direction prayed for, and advised the jury — “that it was not necessary that this agent who had this knowledge was in the employ; if the [424] company knew it before by any of its agents that would be sufficient.” We think in this charge and refusal the Court erred. The case presented was not one in which the jury could rightly infer a continuance of knowledge in the company in consequence of notice to a former agent. The fact, if admitted, that the mark upon the goods had been understood by former agents as the mark of the plaintiff below, was an isolated and transient one, and capable of affecting the company only, because the latter as principal, was identified with the agents possessing the knowledge so far as to make such knowledge in the agent, the knowledge of the company. Any change of agency which would remove that knowledge from the company’s service would sever all connection between the company and the means of knowledge, and so effectually exclude all idea of notice through the medium of former agents. The subject of notice in this case had no relation to any usage, system, course of business, or persistently impressive circumstance, upon which a presumption could be raised, that knowledge of it once brought home to an agent must permanently attach to the corporation. From the nature of the thing the notice could only attach to the principal, so long as the knowledge should remain present in the agency. A corporation has no memory except through its agents and its records, and while the letters “ W. W. W.” might appear in the company’s books, the meaning ascribed to them by defendant in error would not. The circumstance that these letters personated this or that individual would still be an extrinsic fact known or unknown to the agent, and if unknown to the agent, then unknown to the company. , We feel called on to observe farther, that when carriers are receiving daily a multitude of differing packages for distribution, delivering among a very large number of persons of whom a considerable portion at least, must be strangers to the agents, a notice to an agent on one or more occa [425] sions, that certain arbitrary marks indicate ownership in a particular person, ought not to affect the prnicipal with notice of the same fact in any future transaction, unless it is affirmatively shown that the agent at the time of the latter transaction actually remembers the previous notice, and in view of the circumstances has reason to suppose that the same marks still denote the same ownership. And where one, instead of having his goods marked with his name, chooses to adopt some arbitrary or equivocal mark or device, which any other person has an equal right to employ, he should be considered as thereby taking upon himself any risk of failure of the goods to reach him, in consequence of such imperfect marking, and should at his peril see that the carrier in each instance understands the complete significance of his mark or device. The record presents some other questions, but as they will probably not arise on another trial, we do not consider them. The judgment below must be reversed with costs and a new trial ordered. The other Justices concurred.