14 Mich. 489 (Mich. 1866), Sisson v. Cleveland & Toledo Railroad Company

Citation:14 Mich. 489
Opinion Judge:Cooley, J.
Party Name:Horatio B. Sisson and another v. The Cleveland & Toledo Railroad Company and others
Attorney:A. L. Millerd, for plaintiffs in error: C. A. Stacy, for defendants:
Case Date:October 16, 1866
Court:Supreme Court of Michigan

Page 489

14 Mich. 489 (Mich. 1866)

Horatio B. Sisson and another


The Cleveland & Toledo Railroad Company and others

Supreme Court of Michigan

October 16, 1866

Heard July 19, 1866

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Error to Lenawee circuit.

This was an action of assumpsit, brought in the court below against the defendants as common carriers, upon a special contract for the transportation of a lot of beef cattle from Toledo to Buffalo, on their way to the market at Albany or New York.

The evidence showed that the defendants were several railroad companies, owning severally different portions of the continuous line of transportation from Toledo to Buffalo. The contract sued upon was in writing, and signed by the defendants jointly.

Evidence was given to prove that the cattle were shipped by the plaintiffs on the railroad at Adrian, Michigan, to go to Albany or New York, and were then the property of the plaintiffs. On the route, and before their arrival at Toledo, the cattle were sold by the plaintiffs to John L. Perkins, who was the sole owner at the time the contract in suit was executed, and continued to be such owner, and was the real plaintiff in interest, bringing the suit in the name of the original parties to the contract.

On their arrival at Toledo, the cattle were reshipped, or transferred to the cars and the road of one of the defendants; and, just before their starting, the agent of the defendants brought to Mr. Perkins the contract sued upon, in duplicate, and required him to sign the same, which he did. This was shown to be according to the usual custom of defendants--to ship freight received from other roads through in the same name in which it is billed to them, and they would not make a change unless the shipper or consignee were present to direct it.

There was evidence also given, tending to show that the cattle were detained a long time on the way, by the fault of the defendants, and that the plaintiff suffered damage in consequence thereof, both by the depreciation of the quality of the cattle, and the fall of the market before they reached Albany.

The points of law made on the trial, and the exceptions taken to the rulings of the judge and his charge to the jury, are sufficiently stated in the opinion of the court.

The jury rendered a verdict in favor of the defendants, and judgment was entered accordingly. The cause was brought into this court by writ of error and bill of exceptions.

Judgment reversed, with costs, and a new trial ordered.

A. L. Millerd, for plaintiffs in error:

1. The testimony of the witness, John L. Perkins, as to what the conductor of the train told him about the capacity of the engine, and also as to whether the witness could form an opinion from the appearance, as to the capacity of the engine, was competent, and ought to have been received.

2. The evidence offered to prove the state of the market in Albany and New York at the time the plaintiffs' cattle should have arrived there, was competent, and should have been received.

The evidence consisted of the knowledge the witnesses had of the state of the market, as a matter of general notoriety, derived from newspapers (in which the state of the market is published daily), and telegraph reports, and from the statements of those engaged in the business.

These are the sources of general information to which men throughout the country look, and upon which they act.

The state of the market was a matter of public and general interest, and therefore within a well established exception to the rule which excludes hearsay evidence: 1 Greenl. Ev., §§ 127-40; 4 Wend. 313; 1 C. & H. & Edwards' Notes, 200; Am. Law Reg. (June, 1866), 464.

3. The evidence of the witness, Isaac Reynolds, as to what the custom between the defendants was when cattle were to be forwarded from their stock yard, at Cleveland, to Buffalo--as to which company furnished the cars--ought to have been excluded.

It was wholly immaterial which of the companies ought, as between themselves, to furnish the cars. It was no excuse for the breach of the contract, that it occurred by the default of one of the companies rather than another.

4. The court erred in charging that the plaintiffs could not recover damages for loss by depreciation of cattle in the market, except at Buffalo.

The cattle were intended for the market at Albany or New York, and were shipped over the road of the defendants, on their way to such market. The defendants knew this. It was communicated to Mr. Stratton, the agent, by Mr. Perkins, at the time of their shipment on the defendants' road.

The fall in the market at the place of their destination, during the time they were delayed in reaching it, by the fault of the defendants, and in violation of their contract, was a proper element of damages: 22 Barb. 278.

5. The suit was properly brought in the names of the plaintiffs. The contract being in their names, they were the proper and necessary parties to an action upon it, in a court of law. John L. Perkins could not sustain an action upon it, in his own name.

No assignment was necessary to enable him to bring a suit in the names of the parties to the contract. It was only necessary that he should have their authority to do so. The contract with...

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