Cleveland &Amp; Toledo R. R. Company v. Perkins

• Decision Date: 07 October 1868
• Citation: 17 Mich. 296
• Court: Michigan Supreme Court
• Parties: The Cleveland & Toledo R. R. Company v. John L. Perkins

17 Mich. 296

The Cleveland & Toledo R. R. Company v. John L. Perkins

Supreme Court of Michigan

October 7, 1868

Heard July 11, 1868 [Syllabus Material]

Error to Lenawee circuit.

The defendant in error sued the railroad company to recover damages caused by an alleged unreasonable delay on the transportation of cattle, received by them at Toledo, to be transferred to Cleveland; and destined to New York.

The jury rendered a verdict for plaintiff for $ 555.

The cattle were received on the 12th of February. On the 14th of February following, duplicate contracts were executed for their transportation, and one was delivered to Perkins; each party signing his own contract; but the cattle were not forwarded until the 16th of February.

Numerous exceptions were taken at the trial; the principal of which are stated in the opinion of the court.

Judgment affirmed.

C. A Stacy, for plaintiff in error:

1. The part of the contract signed by the plaintiff should have been proved, or its absence accounted for.

Though the witness swore the papers were duplicates; yet it is evident, from the testimony, that they were not what in law is called "duplicate originals," not being both signed by both parties.

2. The plaintiff had no right to introduce testimony showing delay before the execution of the written contract; as by its terms, all previous bargains and understandings between the parties were merged in the writing.

In regard to one car load of the stock, the testimony shows that the transfer of the property on the books of the company, and the notice to the company, was not made until the time of the signing and delivery of the contract.

3. The plaintiff should not have been permitted to have proved the effect of all the delay in this case, more than if the cattle had left Toledo on Sunday night.

The defendant was only liable for the delay after Tuesday morning; the date of signing the contract the plaintiff should only have been permitted to have proved.

By the decision of our Supreme Court--6 Mich. 243--the right of the carrier to limit his liability by contract is not only recognized, but it is declared to be a right, beneficial to the individual shipping his property.

In this case there could be no implied receipt or agreement to carry because, by the usage of the company known to the plaintiff, the company never shipped cattle except under a written agreement, signed by the shipper as well as the company.

The cattle remained at Toledo awaiting shipment till the contract was signed. In that case, the railroad company are not liable as common carriers: 7 Mich. 515.

The liability of the company, if any, was in refusing to receive the cattle as carriers, and not for neglect as carriers before contract, or except upon the written contract itself.

4. The admission of witnesses swearing from recollection as to the market reports in newspapers, is clearly error: 1 Greenlf. Ev., §§ 99, 124; 9 Cush. 36, 40; 8 Met. 436; 3 Gray 374; 16 Ill. 558.

The decision in the case in 14 Mich. though extending the rule beyond what it had been previously held at common law, yet does not, as I understand, go so far as to make parol evidence of witnesses evidence of published or newspaper market reports: 14 Mich. 497.

A. L. Millard, for defendant in error:

1. The railroad company are liable for any damages resulting in delay to transport the cattle previous to signing the contract.

There was an implied contract between the parties before the written contract was made. It arose upon the receipt of the cattle by the defendant, as a common carrier, to be transported to Cleveland.

True, this was merged in the written contract, from the time the latter was made; but when a breach of the implied contract had occurred before the execution of the written contract, the damages resulting from that breach were not waived by the written contract, nor were they merged.

The written contract was a new contract, or a modification of the original, implied contract, entered into after the parties had entered upon the execution of the latter. It had no reference to the past, but only to the future. There was in it no release or waiver of any damages already incurred.

2. The objection to the testimony of the witnesses, the plaintiff and Albert Russell, as to the condition of the New York market, was not well taken.

The defendant insisted that they could not testify as to this except upon personal knowledge.

The sources of information which they disclosed were the reports of drovers and salesmen engaged in the business; newspaper reports of the market, and the personal knowledge of one of the witnesses, of what the market was the week previous.

The circuit court allowed them to testify from knowledge derived from these sources, as to what the market was at the time the cattle would have arrived there but for the delays complained of. In this we think there was no error: 14 Mich. 489.

3. The refusal of the court to charge that the plaintiff could not recover damages for the detention of the stock belonging originally to McDonough, until after the...