Sisson v. Cleveland & Toledo Railroad Company

• Decision Date: 16 October 1866
• Citation: 14 Mich. 489
• Court: Michigan Supreme Court
• Parties: Horatio B. Sisson and another v. The Cleveland & Toledo Railroad Company and others

14 Mich. 489

Horatio B. Sisson and another v. The Cleveland & Toledo Railroad Company and others

Supreme Court of Michigan

October 16, 1866

Heard July 19, 1866 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

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 the plaintiffs was a valid one. It was not void because they had no interest in the cattle which were the subject of it. They might lawfully make a contract for the transportation of the cattle for the benefit of their vendee, in pursuance of the understanding between him and them, and might sustain an action for the breach of it, also, for his benefit.

The want of a beneficial interest in the subject matter of the contract, on the part of the plaintiffs, is no defense to an action upon it: 2 C. & P., 49; 4 Bing. 2; 1 Chit. Pl., 2, 3.

It is not at all necessary that the nominal plaintiff in an action upon a contract should have any beneficial interest in the contract at the time the action is brought, nor is it necessary that he should have such interest at the time the contract is made. He may be a mere agent or trustee for another, and yet make a contract in his own name, which would be binding on both parties, and may sustain an action upon it in his own name.

The contract in this case was made by the defendants with the nominal plaintiffs, with the privity and consent of John L. Perkins, the person beneficially interested. It was in fact made by him, in their names, in pursuance of an understanding with them when he bought the cattle, and because the defendants, according to their usual course of business, would not make it in any other name.

C. A. Stacy, for defendants:

1. The question put to John L. Perkins, the ruling out of which was assigned for error, was clearly hearsay. The engineer was not a competent witness. His admission could not bind the company: 1 Greenl. Ev., §§ 99, 114; 37 Me. 519; 11 Cush. 205; 13 Barb. 246.

2. The court was correct in not permitting said Perkins to swear to his opinion as to the capacity of the engine. There was no evidence that he was an expert. The general rule is that none but persons shown to be experts can swear to matters of opinion: 1 Greenl. Ev., § 440, note 3.

3. The fourth, fifth, sixth and seventh assignments of errors cover the same principle. The question in all is, can the markets in New York or in any other city be proved by newspaper reports or by statements of individuals made not on the market day or at the market place; or, must they be proved by the sworn testimony of the persons who know the facts?

The former rule would violate the principles of law.

a. Forbidding hearsay testimony.

b. Requiring the presence of the witness and allowing cross-examination.

c. Allowing res inter alios acta to bind the party: 1 Greenl. Ev., §§ 99-124; 9 Cush. 36, 40.

d. As being a narrative of a past occurrence: 1 Greenl. Ev., §§ 110; 8 Metc. 436; 3 Gray 374; 16 Ill. 558.

4. The proof objected to, of custom, by Mr. Reynolds, in the eighth assignment of errors, was preceded by proof on the part of the plaintiff of the custom of the company in receiving and forwarding stock, and the rules which governed such reception. In reply to this proof by the plaintiff, this proof was offered and received by the court. We contend that under these circumstances it was admissible, both to rebut the presumption of negligence, and to show the nature of the contract entered into by the defendants.

5. The contract shown was for the conveyance of the cattle from Toledo to Buffalo. There is no proof that the defendants ever agreed to transport the cattle further than Buffalo. There was no proof that by the terms of the contract they were to be held responsible for any damage at any other point. If the plaintiff had desired any damages elsewhere, he should have provided for it by the terms of the contract.

Fall in market cannot be recovered by way of damages: 19 Barb. 36; 3 Hill 333; 6 Duer 375.

Even in those cases where difference in the market price has been recovered, the rule has always been confined to difference at the place of delivery: 2 Kern. 245.

6. The question presented by the last assignment of errors is, whether a plaintiff having no interest in the property, either as owner or consignee, can recover any damages which he never either directly or indirectly sustained, or for losses or expenses which he never was liable to pay.

The declaration alleges that the plaintiffs, then and there, had cattle which they intended for, and were desirous of transporting to the market. The proof shows that the plaintiffs did not have the cattle. The declaration alleges loss to plaintiffs by fall in prices. The proof shows the...