Imágenes de páginas
PDF
EPUB

The Merchants Despatch and Transportation Company r. Merriam el al.

of lading, such transportation companies are bound to deliver goods to the consignee in the manner express companies are, is a question we need not decide.

Whatever might otherwise be the rule, the stipulation in the bill of lading in this case, that the goods should be forwarded to the Louisville depot only, would be sufficient to relieve appellant from the duty of seeking, and making a personal delivery of the goods to the consignees at their residence or place of business, if they had any such at Louisville. In other words, under the stipulation of the bill, appellant was not bound to carry the goods beyond the Louisville depot.

Fairly interpreted, the bill of lading fixed no further limitation upon the duty and liability of appellant as a common carrier of the goods. It did not authorize it to unload the goods upon the platform at Louisville and pay no further attention to them.

It is the duty of such common carriers to provide a place where goods carried by them may be safely kept after they shall have been unloaded from the cars. This duty results from the nature and necessities of the business; and, although the bill of lading may be silent upon the subject, there is an implied undertaking upon the part of the carrier, in a case like this, which becomes a part of the contract, that if the consignee shall not be present to receive the goods from the cars, or on the platform, it will store them in a safe place, and exercise at least reasonable care to preserve them from loss, and to deliver them to the proper consignee.

When the goods are thus unloaded and stored, the extraordinary liability of the common carrier, as an insurer, ceases, and it becomes responsible from that time forward as a warehouseman.

That liability, as we have in effect said, results from and rests upon the contract of carriage. There is but one contract, and when the contract is reduced to writing, it is evidenced by ti^Tbill of lading.

The Merchants Despatch and Transportation Company v. Merriam et aL

If, therefore, after the goods are unloaded and stored, they are destroyed, or delivered to a wrong person, through the negligence of the carrier, it has violated its contract, and may be compelled to respond in damages in a suit upon that contract. In such a case, the action is based upon the contract. And if through the negligence of the carrier after the goods have been thus stored, they are delivered, not to the proper consignee, but to a wrong person, the carrier will be liable to the owner as for a conversion of the goods.

As fully supporting the foregoing propositions, we cite the following: Banscmer v. Toledo, etc., R. W. Co., 25 Iud. 434; Pittsburgh, etc., R. W. Co. v. Nash, 43 Ind. 423; McEwen v. Jeffersonville, etc., R. R. Co., 33 Ind. 368 (5 Am. R. 268); Jeffersonville, etc., R. R. Co. v. Irvin, 46 Ind. 180; American Express Co. v. Hockett, 30 Ind. 250; Adams Express Co. v. Darnell, 31 Ind. 20; American Express Co. v. Stack, 29 Ind. 27; Baltimore, etc., R. R. Co. v. McWhinneyt 36 Ind. 436; Green and Barren River Navigation Co. Marshall, 48 Ind. 596; Cincinnati, etc., R. R. Co. v. MeCoolt 26 Ind. 140; American Express Co. v. Fletcher, 25 Ind. 492; McCulloch v. McDonald, 91 Ind. 240; Indianapolis, etc., R. R. Co. v. Remmy, 13 Ind. 518; Bartlctt v. Pittsburgh, etc.y R. W. Co., 94 Ind. 281; Hall v. Pennsylvania Co., 90 Ind. 459; Lake Shore, etc., R. W. Co. v. Bennett, 89 Ind. 457; Hutchinson Carriers, sections 126, 351, 354, 388.

It is not shown by the evidence in the case before us, except inferentially, that the freight depot of the Louisville, Cincinnati and Lexington Railroad Company was also the freight depot of appellant. Nor is it shown very definitely that appellant. placed the books in that depot. They were placed there by some one, and by the persons in charge delivered to Turner's brother. If, in fact, that depot was also the depot of appellant, and it placed the books therein, it was bound to exercise the care of a warehouseman in the delivery of them. If, in fact, appellant had no freight depot,, but adopted that of the railroad company for the storage of The Merchants Despatch and Transportation Company v. Merriam el aL

the books, it was still bound to see to it that in the delivery* of the books, such care was exercised as is required of a warehouseman.

Nor would it help appellant's case if it should be said that it neither had a freight depot nor stored the books, but left them on the platform at the depot. We are not enabled to say upon the evidence before us, that proper care was exercised in the delivery of the books.

Turner's brother was a stranger to those in charge of the depot where the books were stored. Judson W. Turner did not have the bill of lading, and there is evidence tending to show that neither he nor his brother had either a duplicate or a copy of it; nothing was presented to those in charge of the depot except an order or letter, signed by Judson W. Turner as "agent." It was not even stated therein that he was agent for appellees. In fact, he was not such agent, and had no authority, and could have no authority, to receive the books without having paid the draft attached to the bill in the possession of the bank.

The books were thus delivered to Turner's brother upon the letter alone, and without further inquiry as to his authority to receive them.

The evidence does not justify the delivery of the books to him, and hence that delivery did not relieve appellant from its obligations to deliver them to appellees. See again the cases above cited.

The judgment of the court below awarding damages to appellees is affirmed, with costs.

Filed May 10, 1887.

[merged small][ocr errors][merged small][merged small]
[graphic]

135 ftE? Judgment.Estoppel.Piomissory Note.—Failure of Consideration.Cancel

lation.—Where, in a suit upon a part of a series of promissory notes given for the purchase-price of land, the others not being due, the answer sets up facts showing a failure of the consideration of the notes sued on only, but praying that the whole series be declared satisfied, and a judgment is rendered for the defendant, that judgment is not a bar to a proceeding upon the remaining notes, and a complaint in equity, based upon such judgment, to obtain the cancellation and surrender thereof, will not lie. * Same.Action Upon Series of Notes.When Judgment Bars Subsequent Action.—It is only where the judgment involves the whole of a series of notes, and settles the entire defence thereto, that it operates as an estoppel as to the whole; otherwise the judgment is a finality only as to so much of the claims and defences as were actually litigated in the first suit.

From the Huntington Circuit Court.
J. C. Branyan, M. L. Spencer, R. A. Kaufman and W. A.
Branyan, for appellant.
B. M. Cobb, for appellees.

Mitchell, J.—Kilander brought this suit to procure the cancellation of a certain promissory note executed by him to one Lucas. He alleged in his complaint, that on the 16th day of December, 1878, he purchased from Lucas a certain tract of land in Wells county, containing eighty acres, at the agreed price of one thousand dollars. The complaint averred that Lucas and wife conveyed the land so purchased to the plaintiff by warranty deed, and that the latter had executed three several promissory notes as security for the unpaid purchase-money. These notes were for the respective sums of three hundred and twenty dollars and eighty cents, three hundred and ten dollars and eighty-three cents, and three hundred dollars, due respectively in one, two and three years from the date of purchase. The complaint alleges further, that the plaintiff had been compelled to pay, in discharge of a vendor's lien previously existing against the land, over Kilauder v. Hoover el al.

three hundred dollars, and fifty dollars for attorney's fees, and other sums, amounting in all to three hundred and seventy-two dollars and six cents, and that the west half of the eighty acres had been wholly lost to him by reason of a sheriff's sale to satisfy a judgment existing against his vendor, Lucas, at the time of the purchase. He also charged that he had been evicted from the west half so purchased, and that the amounts which he had been compelled to pay to discharge liens previously existing were more than equal to the value of the east half.

He further alleges that the purchase-money notes above described were assigned by Lucas to the defendant Hoover.

The assignee commenced suit on the first two notes in the Huntington Circuit Court in December, 1880. The plaintiff alleges that he filed his answer in that behalf, setting out, among other things, the facts above recited, concerning the failure of title, and the discharge of liens by him; and he avers that he set up in his answer that there was another note not yet due of three hundred dollars, given at the same time as those sued on, which remained outstanding, and that he prayed as relief in his answer so filed, that all the notes given for purchase-money be adjudged cancelled and satisfied.

The complaint charges further, that upon issues joined on the complaint and answer above mentioned, such proceedings were had in that behalf as that there was a finding for the defendant, and a judgment that the plaintiff take nothing, and that thereupon the plaintiff in that suit appealed to this court, where the judgment below was affirmed. Hoover v. Kilander, 83 Ind. 420.

The plaintiff herein further avers, that since the rendition and affirmance of the judgment above mentioned, the defendant Hoover has assigned the last mentioned note, as collateral security to the Lime City Building and Loan Association, and that his assignee, who is made a co-defendant herein, is threatening to bring suit, or cause suit to be brought on the note, claiming that it is a valid subsisting obligation against

« AnteriorContinuar »