Gifford v. Merchants' Despatch Transportation Co.

Rothrook, J. I. A question is made as to the time at which the bill of lading was delivered to Rawson & Co. The actual delivery of the goods was made by one Henry, the drayman of Rawson & Co. He testifies that he asked for a bill of lading and it was delivered to him. We must assume from this that it was delivered at the time of the delivery of the goods to the defendant; and a delivery to the drayman of Rawson & Co. was equivalent to .a delivery to them. a. common Kteiof eáf-" pnifdpTand agent. II. The plaintiffs further insist that the limitation in the contract as to loss by fire was not known to them at’ the time shipment. This was a transaction done in the ordinary and usual course of business. Rawson & Co. undertook to ship the goods in question to plaintiffs, at plaintiffs’ request. Whatever contract of shipment Rawson & Co. made is binding on the plaintiffs, and the plaintiffs cannot .avoid it by showing that Rawson & Co. received and forwarded it without examination. In the absence of fraud or mistake the shipper will be conclusively presumed to know the stipulations contained in [473] a contract of affreightment. He cannot be permitted to show that he was ignorant of its contents. Mulligan v. Ill. Cent. Railway, 36 Iowa, 181, and cases there cited. 2. —.--; valid in another state, III. This contract of shipment was made in the State of Massachusetts, and it is conceded by counsel for plaintiffs that the limitation of defendant’s liability as a . -, . . common carrier could lawfully be made, and is binding, provided it be held to be the contract of plaintiffs, entered into at the time of the delivery of the goods. As we hold that it was a valid contract, binding on the plaintiffs, the remaining question in the case is as to the defendant’s liability for the loss of the goods, by reason of alleged negligence or breach of the contract. The evidence in .the case shows that the goods in question were delivered to the defendant on the 29th day of September, for immediate shipment. The shipment was made by way of Albany, New York, from which last named place they were shipped to Chicago, on the 3rd day of October. They arrived in Chicago on Saturday, the 7th of October, at 7:50 p. m., and were unloaded into the Despatch Freight House of the Michigan Central Kailway Co., and oil Sunday night, October 8th, the said freight house and its contents, including the goods in question, were wholly consumed by fire. 3__._. mu of ladmg. It will not be claimed that the limitation in the contract exempting the defendant from loss by fire is an exemption at all events. It was the defendant’s duty to properly perform the other conditions and stipulations of the contract, and if by reason of failure in this respect the goods were lost, even by fire, the defendant would be liable. For example, if it had been stipulated in the contract that the goods were to be shipped by a certain route, and they were shipped by another route, and destroyed by fire while in transitu, the defendant would be liable for the loss unless it could show that the loss must have occurred from the same cause if the goods had been shipped by the route designated in the contract. This contract, we take it, was all on one piece of paper, and the evidence shows it was partly printed and partly written. [474] There is nothing in the language contained in the paper indicating that any part of the instrument is not to be considered as part of the contract. An examination of it, as contained in the foregoing statement of facts, will show that the defendant undertook to ship through “ without transfer, in cars owned and controlled by the company.” It may be said that this is a mere caption to the paper in the nature of an advertisement. It cannot be so regarded. There is nothing in the paper itself indicating that it was so intended, and without the first paragraph there would be no obligation binding on the defendant, unless it could be supplied by extrinsic evidence. There is no other statement made as to what company made the contract, than that contained in the first line. The words “Merchants’ Despatch,” on the left niargin, standing alone, as they do, indicate nothing. We think a fair construction of this contract is that the Merchants’ Despatch Transportation Company, a fast freight line from New York, Boston, Albany, and all New England points, to the west, northwest and southwest, shipping through without transfer, in cars owned and controlled by the company, received of D. Gr. Rawson & Co. six cases, to be forwarded to Cedar Rapids, Iowa. We regard this as an undertaking that these goods should be shipped through without transfer. It does not clearly appear,.from the evidence, that the goods were transferred at Albany, and yet we think it is a fair inference, from the fact that a way-bill was made out at that place. It is conceded that there was a transfer at Chicago into a warehouse, where the goods were destroyed. Under the stipulations of this conti’act there was no right of transfer, and the fact that defendant placed the.goods where it had no right to place them under the contract, and the further fact that they were destroyed while in the warehouse, at the very least, puts upon the defendant the burden of showing that the loss would have occurred from the same cause if the goods had remained in the car. No such, showing is made in the case. In Magee v. The Camden & Amboy R. R. Co., 45 N. Y., it is held, ■ “ that when a carrier accepts goods to be carried, with a direction on the part of the owner to carry them in a [475] particular way, or by a specified route, he is bound to obey such directions, and if he attempts to perform his contract in a manner different from his undertaking he becomes an insurer arid cannot avail himself of any exceptions in the contract. If it could be shown, in such case, that the loss must certainly have occurred from the same canse,«and if there had been no default, misconduct or deviation, the carrier would be excused, but the burden of proof of this fact would be upon the carrier.” See, also, Davis v. Garrett, 6 Bingham, 212; Danuth v. Wade, 2 Scam., 285; Story on Bailments, Sec. 509, and Hunting v. Pepper, 11 Pick., 41. In Davis v. Garrett, supra, it is said that “ no wrong doer -can be allowed to apportion or qualify his own wrong; and that as a loss has actually happened whilst his wrongful act was in operation and force, and which is attributable to his wrongful act, he cannot set up as an answer to the action the bare possibility of a loss if his wrongful act had never been done. It might admit of a different construction if he could show not only that the same loss might have happened, but that it must have happened, if the act complained of had not been done.” It must be remembered that we are not now determining the question as to whether the defendant would have been ■liable for negligence, in the absence of any-breach of the express terms of the contract. The question before us is, what are the rights of the parties where the carrier violates the terms of the contract in the mode of transportation. ' The construction we place upon this contract is consistent with the general business and undertakings of companies of this character. They are organized as fast freight lines, and ■ supposed to be doing their business over the railways of the country with speed and dispatch, and if transfers be made át connecting points this mode of shipment can have no preference over shipments by the ordinary railway carriage. We can readily perceive, at least, that one great object in the shipper -using a fast freight line would be to avoid' transfers and the delay and dangers' incident thereto. [476] 4__._. damages. [475] XV. A question is made as to the allowance of interest on [476] the value of the goods. The plaintiffs are entitled to interest at 6 per cent per annum, from the time the goods should have been delivered at Cedar Rajfids. Mote v. Chicago & N. W. R. Co., 27 Iowa, 22. We are unable to determine from the abstract the date of the judgment in the court below, but presume that interest was calculated allowing a reasonable time for shipment between Chicago and Cedar Rapids. Affirmed. Adams, J\, took no part in the determination of the case.