Bennett v. Northern P. Exp. Co.

• Decision Date: 25 February 1885
• Citation: 12 Or. 49,6 P. 160
• Parties: BENNETT v. NORTHERN PAC. EXP. CO.
• Court: Oregon Supreme Court

6 P. 160

12 Or. 49

BENNETT v. NORTHERN PAC. EXP. CO.

Supreme Court of Oregon

February 25, 1885

Appeal from Multnomah county.

Williams, Durham & Thompson, for respondent.

James McNaught and Rufus Mallon, for appellant.

THAYER, J.

This appeal is from a judgment of the circuit court for the county of Multnomah, recovered in an action in said court in favor of the respondent and against the appellant. It is alleged in the complaint in said action that the appellant was a corporation, organized by the laws of the state of Minnesota having agents at the city of Portland, in the state of Oregon, and at the town of Ainsworth, Washington Territory and at other points in said state and territory; that on and prior to the twenty-eighth day of January, 1884, said appellant was a common carrier for hire engaged in the express business between said city of Portland and said town of Ainsworth, and other points in said state and territory; that on said twenty-eighth day of January 1884, Ladd & Tilton, bankers in said city of Portland delivered to appellant, as such common carrier, a package properly secured for transportation, containing currency amounting to $18,784.27, addressed to appellant, by a written indorsement upon said package as follows, "Northern Pacific Express Co., Ainsworth, W.T.;" that said money at said time was the property of the respondent; that appellant received the said package from said Ladd & Tilton, as such common carrier to be by it transported for respondent from the city of Portland to the town of Ainsworth in consideration of a reasonable consideration to be paid therefor; that, at the time it received said money, it was notified by said Ladd & Tilton, and knew, that the money was the property of the respondent, and was to be transported for him and to be delivered to him or his order at said town of Ainsworth upon his demand; that on the thirty-first day of January, 1884, respondent demanded said money of the appellant at its office at said town of Ainsworth, but a delivery was refused; and that appellant, as such common carrier, conducted itself so negligently, carelessly, and fraudulently as to the said package of money that it became wholly lost to the respondent; and it is further alleged in said complaint that on the sixteenth day of February, 1884, said respondent presented to the appellant, at its office in the city of Portland, a written claim and demand for said money, but that appellant refused to deliver or pay respondent the same, or any part of it.

The appellant, by its answer, denied that on the twenty-eighth day of January, 1884, it had office at the city of Portland, or at the town of Ainsworth; denied that it had any knowledge or information sufficient to form a belief that said money was the property of the respondent, or that it received said money to be transported for respondent, or that he was to pay any compensation for the transportation thereof, or that it did transport it for him; denied that it was notified by Ladd & Tilton when it received the money, or ever knew that the money, or any part thereof, was the property of respondent, or was to be transported for him, or to be delivered to him, or to his order, at any place; denied that respondent demanded said money of appellant, at its office in said town of Ainsworth, at any time, or that it neglected or refused to deliver it; denied that it knew that said package contained said sum of money, or, as such common carrier, conducted itself so negligently, carelessly, or fraudulently as to the same; that it became lost to respondent, or that, as common carrier, it conducted itself negligently, etc., as to the transportation of said money, or that respondent lost it by reason of any negligence, carelessness, or fraud of said appellant; and denied that respondent had been damaged by reason of its carelessness, etc.; and for a further defense set up the following affirmative matter, viz.:

"That it is a corporation duly incorporated under the laws of the state of Minnesota, and that its business and powers are stated in its articles of incorporation, and that, under its articles of incorporation, it is authorized to receive money for transportation from the consignor, and transport it over its routes, and deliver it to its consignee, and to collect reasonable charges for transporting the same.

"That under its articles of incorporation it has adopted rules and regulations for the government of its agents in the conduct of its business; that said rules and regulations direct its agents to require of consignors, before the delivery of the money, that the consignor cause the same to be properly and securely tied, sealed, and fastened, and the amount of the money contained therein indorsed on the outside of the package, and the package addressed to the consignee, with the place where the same is to be delivered plainly marked thereon. And said rules and regulations further direct the said agents to deliver the said package to the consignee named and indorsed thereon; that said rules and regulations are the usual and customary rules and regulations adopted by all express companies engaged in business like said defendant; and that on the twenty-eighth day of January, 1884, said Ladd & Tilton, bankers mentioned in said plaintiff's complaint, and said plaintiff, had full knowledge of said rules and regulations, and usage and custom.

"That under said articles of incorporation said defendant could not act as and be the consignee of money it was transporting for others.

"That said agents, under said rules and regulations, and said usage and custom, had no authority to receive said package of money consigned to the defendant for transportation.

"That on said twenty-eighth day of January, A.D. 1884, the said Ladd & Tilton delivered to the defendant's special agents at Portland the said sum of eighteen thousand seven hundred and eighty-four dollars and twenty-seven cents, secured and consigned as stated in plaintiff's complaint, and the said special agents of the defendant, then and there acting on behalf of said defendant, entered into a contract with said Ladd & Tilton to receive the said package from the said Ladd & Tilton so consigned, and transport the same to said town of Ainsworth. And that in said contract the said Ladd & Tilton and the said defendant further agreed that the said defendant should be liable for said money as a forwarder only. That said contract, in so far as it related to the receiving of said package consigned to the Northern Pacific Express Company, was void. And that said defendant thereafter, on said twenty-eighth day of January, A.D. 1884, and while said package was still in the city of Portland, and before the delivery thereof to the express messenger, and while said contract was entirely executory, mutually agreed with said Ladd & Tilton to and did modify said contract so as to consign said package of money and said money to E.E. Johnson. That said E.E. Johnson in said contract was named and called 'Agent Northern Pacific Express Company.' That said E.E. Johnson was, on the twenty-eighth and twenty-ninth days of January, A.D.1884, the agent of plaintiff and acting for and on behalf of plaintiff, and authorized by plaintiff to receive said package of money.

"That under said contract as modified, the said defendant, within a reasonable time after the delivery to it of said package, forwarded the same to the said town of Ainsworth, and on the twenty-ninth day of January, A.D. 1884, at the said town of Ainsworth, delivered the said package of money and the said eighteen thousand seven hundred and eighty-four dollars and twenty-seven cents to the said consignee, E.E. Johnson; and the said E.E. Johnson then and there received said package of money, opened the said package and counted said money, and then and there, as such consignee, gave the said defendant the usual and customary receipt for said money. And the said defendant's connection with and liability for said money on said delivery to said consignee then and there terminated."

The respondent, in reply to the new matter set forth in the answer, denied the allegations thereof that were at variance with those set out in the complaint, and all the matters in the said answer which were in avoidance of his alleged cause of action. The issues were tried by the said circuit court, and a jury duly impaneled, and the said jury returned a verdict in favor of the respondent and against the appellant for the amount of said money, and the interest thereon from the time the respondent claimed it should have been delivered; from which judgment the appeal herein was taken.

The appellant's counsel insist that the said judgment should be reversed, upon the grounds--

First, that the allegations and proofs show that it performed its contract and duty in regard to the said package of money; and, second, that the circuit court committed error in its rulings, in the admission of evidence, and in its instructions to the jury.

It appears from the pleadings and proofs, we think, beyond question, that at the time the money is alleged to have been delivered to the appellant, it was a corporation engaged in the express business between the places alleged in the complaint; that the said package of money was duly delivered to it at Portland for transportation, and that it belonged to the respondent; that the money was never delivered to the respondent. The business relating to the affair had its inception in the sending of drafts by Donnell, Clark & Laribie, bankers at Deer Lodge, Montana territory, to Ladd & Tilton, at Portland, Oregon. Said drafts were accompanied by a letter of instruction, in the following words:

"DEER LODGE, M.T., Jan. 24, 1884.

"Messrs. Ladd & Tilton,

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