White v. Missouri Pacific Railway Co.

1. Railroads — Contract of Shipment — Interpretation of — Case Adjudged. — Defendant made with, plaintiff a contract for the shipment of cattle, containing this stipulation: “ Now, in consideration that the party of the first part will transport for the party of the " second part one car of cattle and one car of hogs to the National Stock Yards station, .at the rate of thirty-five dollars per car, with privilege of Chicago at forty-five dollars per car load,” etc, ; and providing, further, that plaintiff should unload and reload at transfer points; and St. Louis was the end of defendant’s line, and there would be a transfer to some other line at that point, if the stock should be taken to Chicago ; and the fact is admitted that the defendant did not transport the stock further than St. Louis. Held, that the contract of shipment meant that plaintiff could ship to St. Louis, and there he had the privilege of determining, in a reasonable time, whether he would go on to Chicago ; and upon plaintiff’s demand to furnish transportation, within a reasonable time, to Chicago, and the failure of defendant so to furnish it, the plaintiff was entitled to recover. 8. -Authority of Agent to Contract — Course of Dealing by Recognition of. — Although the station agent of defendant had no authority to contract for transportation beyond the terminus of its own line ; yet when defendant had made other similar contracts prior to this, being represented by said station agent, which contracts had been recognized and carried out by defendant, this was a “ course of dealing between plaintiff and defendant’s agent, from which the authority of the agent to make the contract might be in- . ferred,” Besides, defendant’s general freight agent, who has unquestioned right to make such contracts, recognized its validity in this case. 3. .-Obligation to Perform Oontraot — Not Excused by the Existence of a Mob. — “When a party; by his own contract, creates a duty or charge upon himself, he is bound to make it good, notwithstanding any accident by inevitable necessity, because he’ might have provided against it by his contract.” Harrisonv. R. R. 74 Mo. 364. 4. Practice — Instructions—Trial by Court. — As the chief purpose of instructions is to show upon what theory the court tried the case, the same necessity for instructions does not exist as if the case were-tried by jury.

Appeal from Cooper Circuit Court, Hon. E. L Edwards' Judge. Statement of case by tbe court. This suit was instituted to recover damages sustained by tbe plaintiff, on account of tbe breach of a written contract, made by him with the defendant, for the shipment of a lot of cattle. The plaintiff was a cattle trader, and had a number .of carloads of stock at Boonville, ready for market. The defendant was operating a railroad from Boonville to St. Louis. In order to induce the plaintiff to ship the cattle over its road, the defendant made a contract with him, by which the defendant agreed and contracted to transport said cattle, for the plaintiff, to the National Stock Yards, at St. Louis, at the rate of thirty-five dollars per car, “ with the privilege of Chicago at forty-five dollars per car load.” The contract is upon one of the company’s blanks, and contains numerous stipulations. Among others, an agreement that the plaintiff should “load, unload, and reload said stock at his own expense, and feed, water, and attend to the same at his own expense and risk, while in the stock yards of the defendant awaiting shipment, and while on the cars, or at feeding, or at transfer ;-points.” Tlie contract was signed by the local agent of the defendant at Boonville, as well as by the plaintiff. The plaintiff introduced evidence to show that both before and subsequent to the making of the contracts in suit, he had made similar contracts with the same agent, and that the defendant had recognized them as binding upon it, and had shipped his stock under them to Chicago. The stock was received by the defendant, under the written contracts sued upon, and reached the National Stock Yards in St. Louis between two and three o’clock in the afternoon. It does not appear when the cattle were unloaded from defendant’s cars. The next morning, about ten o’clock, the plaintiff concluded that he would take the stock on to Chicago, and called upon a Mr. Gould, who attended to the transferring, to ship the cattle. Gould declined to do so. Plaintiff’s brother then went to defendant’s general freight agent, about eleven or twelve o’clock, and told him that plaintiff had these contracts for the shipment of the cattle to Chicago, if he elected to have them taken there; that he had made the contracts with the agent at Boonville, and that he' wanted to go on. The general freight agent asked what a freight agent could do in the presence of such a mob. Plaintiff’s brother answered, that he could not help that; that iilaintiff had the contracts and wanted to go on, and the general agent said he could do nothing. The plaintiff could not get transportation, and was compelled to keep his stock in St. Louis nine days before he could ship them. He was put to expense in feeding them; they lost grade, and when he did succeed in getting transportation, he was compelled to pay a great deal more than the contract price. The defendant, in its answer, after a general denial, set up, by way of special defence, that it had no road from St. Louis to Chicago, and only undertook to ship the cattle as agent for the plaintiff, byway of the Chicago & Alton Railroad, and that plaintiff so understood it; that it transported the cattle to St. Louis safely, and delivered the same to plaintiff’s agent, and that the plaintiff kept them two or three days before making demand for further transportation, and that the plaintiff well Jcneto at the time he requested transportation, that a-mob was preventing the employes of the Chicago & Alton Railroad from engaging in its service, and asked that the Chicago & Alton road be made a party defendant. The new matter was stricken out, on plaintiff’s motion, as irrelevant and .immaterial, and because plaintiff’s action was based upon a written contract to transport plaintiff’s cattle to Chicago, if he elected to have them taken there, and it was wholly immaterial whether defendant’s road extended to Chicago or not, or whether it expected to ship by the Chicago & Alton road; that the action being upon a written contract, executed by the defendant, it could not be altered or modified by prior or contemporaneous parol understandings; and because said matter constituted no defence. The court, at plaintiff’s instance, declared the law to be that if defendant’s station agent signed the contracts sued upon for it, and that the defendant company had previously recognized and approved similar contracts, made with plaintiff, in its behalf, by said agent, and that while the stock was in St. Louis, the attention of defendant’s general freight agent was called to the contracts made by the station agent, and that he recognized them as valid and binding upon the company, the defendant was bound by the contracts, notwithstanding they were for the transportation of stock beyond the terminus of defendant’s road. The second declared that, under the contracts sued upon, defendant was bound to furnish transportation for said stock to St. Louis, and, upon plaintiff’s demand, to furnish transportation, within a reasonable time, to Chicago, and if it failed to do so, the plaintiff was entitled to recover. The court refused the following instructions offered by defendant: “ 1. The court declares the.law to be that the contracts sued on in this case are only contracts to transport the plaintiff ’ s cattle from Boonville to the National Stock Yards, and are not contracts to transport said cattle to the city of Chicago, a point beyond the terminus of defendant’s road, but it is merely, a guarantee of the through rates of freight named therein, and the plaintiff is not entitled to recover in this case.” “2. The court, sitting as a July, declares the law of this case to be, that, under the evidence in this case, the plaintiff, if he be entitled to recover at all, can only recover the excess of freight charges per car above forty-five dollars, with interest at the rate of six per cent, per annum from the date of filing the petition in this case, to-wit, the seventeenth day of May, 1881.” “ 3. The court, sitting as a jury, declares the law of this case to be that there is no evidence tending to show that the station agent, Randolph, had authority to make, on behalf of defendant, the contract set up in the petition, and that the verdict must be for the defendant.” “4. The court, sitting as a jury, declares the law of this case to be, that, under the contract read in evidence, it was the duty of the plaintiff to notify the defendant-before or at the time the cattle' arrived at the National Stock Yards, that he elected to have said cattle transported from there to the city of Chicago, and there being no evidence that he did so notify the defendant before said cattle were unloaded at said stock yards, the jury will find for the defendant.” The finding of the court was for plaintiff in the sum of $1,500, andMefendant appeals. I. It was error to sustain motion to strike out all of defendant’s answer except the general denial. The part stricken out set up three good defences: (1) That by the terms of the contract sued upon, defendant was only liable as forwarder, and not liable for anything beyond its own line, except to protect the through rate of freight in said contract named. (2) That defendant delivered the stock to plaintiff at St. Louis, and that he kept it two or three days before he notified defendant that he wanted it shipped to Chicago. (3) That the Chicago railroad company was prevented from running its trains by a mob. Read v. R. R. Oo., 60 Mo. 199; R. R. v. Halloioell, 65 Ind. 188; R. R. r. Hagen, 84 111. 36; Bartlett v. R. R., 94 Ind. 281. II. It was error to admit the contracts in evidence, because: (1) There was no sufficient evidence of the authority, of the local agent to make such contracts. He had no power to contract for the transportation of stock beyond the line of defendant’s road, and there was no such prior course of dealing between plaintiff and said agent, afterwards ratified by the company; as will bind it in this instance. Sewing Machine Oo. v. Ry., 70 Mo. 672; Qupples v. Whelan, 61 Mo. 383. (2) The contracts showed upon their face that defendant was only bound to protect the through rate of freight therein named, and defendant was only liable as forwarder. III. This action arose before the passage of the Carriers Act of 1879 (sect. 598, Eev. Stat.), and hence is not affected by that act. Before the passage of that act, there can be no doubt but that a carrier might limit its liability by a contract like that sued upon. Lawson on Common Carriers, sect. 296, and cases cited; Qoates v. Ex. Oo., 45 Mo. 238 ; Holliday v. R. R., 74 Mo. 159. IY. The court erred in giving plaintiff ’ s instructions and in refusing defendant’s, and also in overruling defendant’s demurrer to the evidence. There is no evidence that plaintiff complied with his part of the contract, even by paying the increased amount of freight to Chicago. Performance must not only be averred, but must also be proved, and this was not done. Y. It was the duty of plaintiff to notify defendant before the stock was unloaded, that he elected to have them transported to Chicago. If he did not do this, defendant had the right to conclude that plaintiff had elected to go no further, and that it had complied with its contract. I. The suit is upon a special contract, and it was immaterial whether defendant’s road extended beyond St. Louis or not. It had the power to contract for transportation beyond its own terminus. Quimby v. Vanderbilt, 17 N. Y. 306 ; Hutch, on Carriers, sect. 145 ; Loomis v. Wabash, etc., R. R., 17 Mo. App. 340. II. The contract could not be varied by the “ understanding” of the parties, not expressed in the written contract, and that part of the answer was properly stricken out. Jones v. Shaw, 67 Mo. 667. III. The allegation that plaintiff received the stock at St. Louis and did not demand transportation for two- or three days thereafter was unnecessary. It could have been proved under the general denial. The defendant was not injured by the ruling of the trial court. IY. The fact that the employes of the Chicago & Alton railroad were prevented by violence from engaging-in the service of that company constituted no defence. (1) The suit was not against defendant upon its liability as a common carrier. It was based upon a special contract. “ Where a' party by his own contract creates a duty, liéis bound to make it good, notwithstanding any accident or inevitable necessity, because he might have provided against it by his contract.” Harrison v. R. R., 74 Mo. 364; Shouse v. Neiswaanger, 18 Mo. App. 237; Davis, Adrtir, v. Smith, 15 Mo. 467. (2) The contract did not provide that the shipment should be by the Chicago & Alton railroad. Deféndant was not confined to that road in furnishing transportation. It is not alleged that defendant could not furnish transportation by other routes. (3) The new matter is not well pleaded. It is inconsistent to deny a contract and then confess and avoid it. Only the facts, well pleaded, are admitted. Y. The authority of the local agent to make the contract sufficiently appears. He made similar ones before and after this, which were recognized as binding by defendant. The general freight agent also ratified and approved them. Sewing Machine Co. v. JR. R., 70 Mo. 672. YI. In construing contracts, the object is to ascertain the meaning of the parties. There can be no difference as to the meaning of this. The measure of damages is the actual loss sustained by plaintiff. The court ruled rightly as to contract and damages. Bent v. Alexander, 15 Mo. App. 181; Harrison v. R. R'., 74 Mo. 364.