Clark v. Lindsay & Co.

Hunt, J. What was the contract entered into between the parties ? If the respondent is correct, Pendleton did 'all he was obliged to do, when on February 15th, he placed the merchandise involved in good condition on board the railroad tars at Lawrence, Kansas, to be transported to Helena, Montana. [4] But if appellant, defendant, is correct, although it admits that the contract entered into between it and Pendleton is the same as set forth by Pendleton, it nevertheless avers it was agreed in and by said contract that the merchandise was to be delivered to the railroad company so that it could be shipped and leave Lawrence on or before February 15th, and that such shipment and departure were material parts of the contract. Without reviewing the evidence, it is sufficient to say that the plaintiff’s version of the agreement is fully supported. When plaintiff’s assignor agreed to ship the goods on or before February 15th, presumably he meant only to deliver the goods on that date to the carrier for transportation on a regular line of transportation between the point of shipment and destination. This was done. The signification of the word ‘ ‘ shipment ’ ’ is uniform. The Century Dictionary defines ‘ ‘ shipment ” as “ the act of dispatching or shipping; especially the putting of goods or passengers on board ship for transportation by water. A quantity of goods delivered at one time for transportation whether by sea or by land.” (Black’s Law Dictionary.)’ There was, therefore, no implied obligation on the part of the plaintiff’s assignor to see that the merchandise left on the 15th. The argument of the appellant is very close to that advanced by defendants in the case of Ledon v. Havemeyer, 8 L. R. A. 245. It was there contended that the word “shipment” meant a clearance of the vessel as well as putting the goods on board within the period allowed for shipment. But the court held otherwise, saying : ‘ ‘ The words ‘ shipment ’ and ‘ shipped ’ are now used indifferently to express the idea of goods delivered to carriers for the purpose of being transported from one place to another, over land as well as water, and imply with respect to carrying by land, a completed act, irrespective of the time or. mode of transportation. (Caulkins v. Hellman, 47 N. Y. 452; Fisher v. Minot, 10 Gray 260; Schmertz v. Dwyer, 53 Pa. 335.) [5] “We have been referred to no authorities supporting the defendants’ contention, and we believe it to be contrary to the invariable meaning of the word, as defined by lexicographers, as understood by the mercantile community generally or as laid down in the decision of the courts.” The court charged the jury in harmony with the law as above stated, and submitted to their determination all the evidence bearing upon the actual agreement between the parties. They were told that if they believed that the contract was in effect that the goods were to be shipped by Pendleton on or before February 15th, and that Pendleton placed the goods on board the cars of the Union Pacific Railway Company at Lawrence on the said 15th day of February, then they should find that Pendleton had complied with his part of the contract; but if they believed that the agreement was that Pendleton was to deliver the goods so that they could leave Lawrence on the 15th, and they were not delivered in time to let the cars go forward on that date, they should find for the defendant. They were further told that if, however, they believed Pendleton placed the goods on board the cars on the 15 th so that they could have left Lawrence on that day, then Pendleton complied with his contract and the plaintiff could recover. Thus the facts and the law applicable were fairly submitted to the jury and their verdict for the plaintiff cannot now be disturbed. We may say, too, that the appellant in the case is in no position fo complain, for under the construction of the contract that it contends for, it could not recover, inasmuch as it clearly appears by the testimony that the car was loaded on the night of the 15th at Lawrence, in time to have enabled the carrier to move it forward toward its destination — hence if there was any negligence at all, it was on the part of the railroad company, and did not lie in a breach of plaintiff’s contract with defendant. (Hutchinson on Carriers, § 89.) There being no error in the record, the judgment and order will be affirmed. Affirmed. Pemberton, C. J., concurs. De Witt, J., not sitting.