Dresser v. Canadian Pac. Ry. Co.

BAKER, Circuit Judge, after stating the case as above, delivered the opinion of the court. Plaintiff bases his action upon the claim that the defendant, as a common carrier, undertook to transport him from Seattle to Dawson City. Defendant might have contracted to act as principal in carrying plaintiff to Dawson City, in which event the steamship company would have been defendant’s agent in executing defendant’s undertaking, or might have acted as the steamship company’s agent in selling its tickets and contracting with plaintiff for carriage, or might have undertaken for plaintiff to procure for him a ticket and contract from the steamship company. Any of these course's would be lawful, in the absence of charter restrictions; and the act would be a representation of power, of which the disproof, if permissible, would have to come from defendant. But the evidence fails to disclose an express contract, either written or oral, under which defendant agreed to act as carrier between Seattle and Dawson City. What engagement is implied from the facts and circumstances ? Mr. Sexton, for plaintiff, purchased of defendant an order drawn by defendant’s agent at Chicago on defendant’s agent at Seattle, directing the latter to deliver to plaintiff, on his presenting and surrendering the order, a ticket to Dawson City on the steamship Humboldt. On the back the value of the order was stated to be $300. The order is indefinite, in that it doe's not disclose the owner and operator of the steamship, and declare in which of the three possible capacities the defendant was acting. But if defendant owned and operated the steamship, defendant could have issued through its Chicago agent its •own tickets for passage thereon. If the steamship was owned and operated by a different company, and if there were arrangements between the two companies whereby defendant was entitled to sell steamship tickets, either as principal or agent, defendant could have had tickets at its office in Chicago as easily as at Seattle. If, however, there were no traffic arrangements between the two companies, and if defendant had no steamship tickets at any of. its offices, the only thing defendant could do at Chicago would be to take the .price [284] of the steamship company’s ticket from the traveler,' and give him an order on defendant’s agent at Seattle for a ticket, and then at Seattle have the agent take an equal amount of defendant’s money, and go to the steamship company and buy the traveler a ticket. And this is exactly what was done. The occurrences at Seattle were some days later than those at Chicago. But no oral contract of defendant as principal carrier from Seattle to Dawson City appearing in evidence, and the order being silent, the acts of the parties in fulfilling the order may be looked to for its interpretation. And the interpretation that defendant simply engaged to turn over to plaintiff at Seattle a ticket under which the steamship company should be carrier is in harmony with the record of what took place at Chicago. Plaintiff saw in defendant’s office a placard advertising some steamship company, and offering transportation from the Pacific Coast to Dawson City for $300. He noticed other placards stating that transportation from Chicago to Dawson City could be procured at that office. No attempt is made to show the full wording of any of these placards. Statements touching their contents fail to show that defendant was offering to carry passengers to Dawson City. Plaintiff paid $362. But the amount was not unapportioned. Sixty-two dollars was for carriage by rail. Three hundred dollars was the value of the order;, that is, the amount it took to buy a steamship ticket from Seattle to-Dawson City. The cases of Quimby v. Vanderbilt, 17 N. Y. 306, 72 Am. Dec. 469, and Williams v. Same, 28 N. Y. 217, 84 Am. Dec. 333, are not in point. The defendant in those cases advertised in the press and in bulletins in his office “Vanderbilt’s new line between New York and San Francisco. The only through line via Nicaragua.” There was positive evidence of an oral contract between the parties to carry plaintiff the entire distance, for which he paid the gross sum of $250. It was held that the delivery to him of three separate token tickets-was not inconsistent with the oral contract. The weight of authority seems to be that the mere act of selling tickets of other transportation companies does not make the selling-company liable as principal. 25 Am. & Eng. Enc. Law, 1086, and-notes. But it is unnecessary to express any opinion on that question,, for defendant simply purchased a ticket for plaintiff, and the evidence-does not establish any broader undertaking. If the ticket was not “unlimited,” or if the plaintiff accepted it under protest, his ground of complaint would be that defendant had not delivered the article it had agreed to. But that would not prove that, defendant was principal in a contract to carry plaintiff from Seattle-to Dawson City. Plaintiff’s grievances grew out of the fact that he did not reach Dawson City before the end of September. Even if there was any-evidence to show that defendant contracted, as principal, to carry plaintiff to Dawson City, there is no evidence tending to prove that defendant agreed to do so before the close of navigation. The statements on the placards were made by the steamship company. The-conversation between Mr. Sexton and Mr. Elsworthy on that point was merely casual. Mr. Sexton is unable to say that the remark. [285] was made before the transaction of purchasing the ticket's and order was completed. It certainly was not a promise in consideration of which any part of the $362 was paid. Error is predicated on the court’s refusal to permit plaintiff to state a conversation between himself and a ticket clerk the day before Mr. Sexton purchased1 the tickets and order. The clerk was not shown to be an agent of defendant. Mr. Sexton did not bring the matter to the attention of Mr. Elsworthy when the latter Sold the tickets and order. The assignment of errors fails to state the substance of the evidence rejected, as required by rule 11 (31 C. C. A. cxlvi, 90 Fed. cxlvi). The record does not disclose what was expected to be elicited by the question. Patrick v. Graham, 132 U. S. 627, 10 Sup. Ct. 194, 33 L. Ed. 460; Ladd v. Mining Co., 32 U. S. App. 93, 14 C. C. A. 246, 66 Fed. 880. The rule that the bill of exceptions must show the materiality of rejected evidence is not merely a technical one, for it would be a hardship on defendant in error and an imposition on the trial court if a judgment were reversed to let in evidence that could not have any-bearing on the result. What evidence was introduced by defendant, and what the proper rule for measuring damages might be, are matters that become immaterial, in view of plaintiff’s failure to make out a case. The judgment is affirmed.