Diamond Joe Line v. Carter

Mr. Justice Windes, after making the foregoing statement, delivered the opinion of the court. A question is made by appellant to the effect that the court found that the plaintiff was entitled to recover under the first count, and not under the second count, and inasmuch as it is claimed there was a fatal variance' between the proof and the first count, that the judgment must be reversed because of such variance. This contention as to the finding of the court would seem, from the abstract, to be correct, but by the record in the bill of exceptions and the judgment of the court, it appears that the court held that the plaintiff was entitled to recover, and the finding of the court in its order of judgment is, “finds the defendant guilty and assesses the plaintiff’s damages at the sura of $250.” This we regard as a finding generally, and is sufficient if either count is good. We do not understand that it is claimed by appellant, but that appellees were entitled to recover under the count in trover, if entitled to recover at all under the evidence; and if it did so contend, we are of opinion such contention is not tenable. The count in trover is good. R. R. Co. v. Herndon, 81 Ill. 143; R. R. Co. v. Buckley, 114 Id. 337. We are inclined to the view that appellant’s liability was as a warehouseman and not. as a common carrier, the goods having been safely carried and stored in appellant’s warehouse in St. Paul, unless it. was made liable as a earner {by a failure to obey the order to its agemtyB rock way, to forward the 200 boxes of ink in question consigned to appellees to places designated by Eaton & Jackson. (Gregg v. R. R. Co., 147 Ill. 555, and cases cited.) Waiving that question, however, we think they were, liable as warehousemen. It was appellant’s plain duty under the order given to its agent, if it undertook to act under the order, to forward the goods to places to be designated by Eaton & Jackson to appellees- as consignees, and in delivering them to Eaton & Jackson, there was negligence-—a wrongful delivery, for which it is liable. It failed to. exercise ordinary or reasonable care as to the goods, as was its duty as warehouseman. Herndon case, supra; Buckley case, supra; Gregg case, supra. We think the contention of appellant that Brockway was the agent of appellees, and not of appellant, is not tenable, and what was said by the Supreme Court in I. C. R. R. Co. v. Carter, 165 Ill. 572, as to the agency of Williams, was said with reference to the liability of the railway company as a carrier and insurer and after its duty had been fully performed by delivering the goods to appellant. Appellant assumed the liability of warehouseman of these goods, and it continued until the goods were delivered to the persons entitled to receive them. They failed to perform their duty to exercise ordinary and reasonable care to deliver them, as their agent was directed. Appellees have assigned as cross-error that the court refused to hold a proposition of law to the effect that they were entitled to recover interest. Conceding appellees’ right to recover interest from the date of wrongful delivery to the date of the judgment, the proposition of law which the court was asked to hold was that appellees were entitled to interest from August 7,189 L, the date of Brookway’s letter to Carter, Dinsmore & Co., while the evidence fails to show there was a delivery prior to August 12,1891, and the letter referred to is dated August 17, 1891. The court did not err in refusing the proposition as asked. The judgment is affirmed.