Banks v. Chicago, Burlington & Quincy Rairoad Co.
| Decision Date | 13 February 1911 |
| Citation | 134 S.W. 1071,153 Mo.App. 469 |
| Parties | H. H. BANKS, Trustee in Bankruptcy of W. H. Leonard, Respondent, v. CHICAGO, BURLINGTON & QUINCY RAIROAD COMPANY et al., Appellants |
| Court | Kansas Court of Appeals |
Appeal from Boone Circuit Court.--Hon. Nicholas D. Thurmond, Judge.
Judgment reversed and cause remanded.
E. W Hinton for appellants.
(1) The written and printed bill of lading purported to be a complete contract between the parties for the transportation in question, and hence it was error to permit the plaintiff to add additional stipulations for a two weeks stop, by parol evidence of prior negotiations. Koons v. Car Co., 203 Mo. 227; Boggs v. Laundry Co., 171 Mo. 282; Blake v. Jaeger, 81 Mo.App. 239; Helm v Railroad, 98 Mo.App. 419; Thompson v. Libby, 34 Minn. 374, 26 N.W. 1; Violette v. Rice, 173 Mass 82. (2) The alleged contract was illegal and void because it granted the shipper a greater privilege than that provided in the tariff schedules. Lyne v. Railroad, 170 F. 847. (3) The written bill of lading, plus the parol additions, did not create a joint liability and hence it was error to permit a joint recovery. McLendon v. Railroad, 119 Mo.App. 128; Meyers v. Railroad, 120 Mo.App. 288; Pipe Co. v. Railroad, 137 Mo.App. 479; Crockett v. Railroad, 126 S.W. 250. (4) Even by the aid of the parol evidence, the plaintiff failed to make out a several liability against either defendant because the C. B. & Q. Company did not undertake to carry beyond Moulton, Iowa. McLendon v. Railroad, 119 Mo.App. 128; Crockett v. Railroad, 126 S.W. 243. (5) The instruction as to the measure of damages was erroneous in allowing the jury to award the increased price for which the horses might have sold if they had been fattened for two weeks, because no such damage could have been contemplated in the absence of some notice to defendants that the horses needed feeding to fit them for market. Hadley v. Baxendale, 9 Exch. 341; Rogan v. Railroad, 51 Mo.App. 665; Abeles v. Telegraph Co., 37 Mo.App. 554; Wilson v. Russler, 91 Mo.App. 275.
N. T. Gentry for respondent.
(1) No error was committed by the trial court in permitting oral evidence to be introduced to prove that the appellants agreed to stop the car at Centralia, Missouri and allow Mr. Leonard to feed, water and rest his fifteen horses, and then to load said horses, and eleven other horses, on said car. As a general proposition, parol evidence is not admissible to add to or to vary a written contract; but that rule has exceptions which are as old and as well established as the rule itself. Brown v. Bowen, 90 Mo. 189; Greening v. Steele, 122 Mo. 294; Van Meeter v. Pool, 110 S.W. 5; Lumber Co. v. Warner supra; Bonney v. Morrill, 57 Me. 368; Bashor v. Forbes, 36 Md. 154; 1 Greenl. on Ev., sec. 284a; 1 Elliott on Ev., secs. 577, 518; Underhill on Evidence, pp. 307, 308; Lawson on Contracts, secs. 378, 384; 1 Beach on Contracts, sec. 28; 9 Ency. of Evidence, p. 350; 9 Cyc. of Law, pp. 587, 588; 2 Parsons on Contracts (7 Ed.), sec. 548. (2) A common carrier may contract to carry beyond its own line. It is well settled that where several common carriers each having its own line, associate and form what to the shipper is a continuous line, and contract to carry goods through for an agreed price which the shipper pays in one sum, and which the carriers divided among themselves, then they are jointly and severally liable to the shipper with whom they have contracted for a loss taking place on any part of the whole line. White Com. Co. v. Railroad, 87 Mo.App. 334; Sherwalter v. Railroad, 84 Mo.App. 589; Wyman v. Railroad, 4 Mo.App. 35; Harp v. Grand Era, 1 Woods (U.S.C. C.) 184; Railroad v. Wilkins, 44 Md. 11; Barton v. Wheeler, 49 N.H. 25; Quimby v. Vanderbilt, 17 N.Y. 306; Choteaux v. Leach, 18 Pa. 224; Steamboat Co. v. Brown, 54 Pa. 77; Hutchinson on Carriers, sec. 158. (3) Finally, it will be seen that the judgment in this case follows that line of decisions, which hold that a common carrier is liable for its failure to properly deliver freight entrusted to it. On that subject, an eminent author said, "Every delivery must be made to the right person, at a reasonable time, at the proper place, and in a proper manner." Hutchinson on Carriers, sec. 340; Bartlett v. Philadelphia, 32 Mo. 256; Tandy v. Railroad, 68 Mo.App. 431; Leavering v. Transportation Co., 42 Mo. 88; Story on Bailments (9 Ed.), secs. 543, 574.
This is an action to recover damages on account of the alleged breach of a contract of the defendant carriers for the transportation of a shipment of horses from Unionville, Missouri, to the stock yards at East St. Louis, Illinois.
W. H. Leonard, a dealer in horses, entered into a written contract with the Chicago, Burlington & Quincy Railroad Company on September 8, 1908, by the terms of which the company received and undertook to transport fifteen horses from its station at Unionville, Mo., to Moulton, Iowa, and there deliver them to the Wabash Railroad Company for further transportation to East St. Louis. The horses did not make a carload but Leonard had other horses near Centralia, Missouri, a station on the Wabash road, and proposed to the company that the car be stopped at that point and that he might add eleven other horses to the shipment to make a carload.
Accordingly the agent wrote on the shipping contract the words, "Stop Centralia Mo. to fill" and added five dollars to the transportation charges for the privilege thus granted. Leonard intended to sell the horses on the market at East St. Louis and they were in poor condition for immediate sale owing to the fact that being grass fed only they were poor and shabby looking. His purpose was to unload them at Centralia, take them out to a farm where he had arranged for their reception and care, have them well fed for two weeks and then reship them on to market together with eleven other horses. Over the objections of the defendants plaintiff was permitted to introduce testimony tending to show that Leonard had an oral agreement with the agent of the carrier made at the time of the execution of the shipping contract that he should be permitted to carry out this plan and that the extra charge of five dollars was imposed for the privilege of stopping and unloading at Centralia and holding the horses there two weeks for feeding.
The Burlington Company carried the horses to Moulton, Iowa, and there delivered them to the Wabash Company which carried them through to East St. Louis without stopping at Centralia. In consequence of this breach of the alleged oral contract the horses were prematurely forced on the market and, owing to their poor condition, were sold at a great sacrifice.
Leonard presented a claim to the Wabash Company for the damages resulting to him from the breach of the oral contract. That company refused to recognize the validity of that agreement but stood on the written contract and offered to compensate Leonard for the damages he suffered on account of the breach of the stipulation to stop at Centralia to receive an addition to the load. The judgment before us is for plaintiff and is an expression of Leonard's theory of the nature and scope of his contractual relation to defendants. Before the trial Leonard became a bankrupt and the action is prosecuted by his trustee in bankruptcy as plaintiff.
The issues contested at the trial and argued in the brief's of counsel cover a wider field than we shall cover in the statement of facts and opinion. We think the learned trial judge erred in submitting to the jury the issue of whether or not an oral agreement contemporaneous with the written contract was made by the parties. When a written...
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