Bloomingdale v. B.M. Du Rell & Co

• Decision Date: 01 January 1866
• Citation: 1 Idaho 33
• Parties: J. B. Bloomingdale, Respondent, v. B. M. Du Rell & Co., Appellants.
• Court: Idaho Supreme Court

1 Idaho 33

J. B. Bloomingdale, Respondent, v. B. M. Du Rell & Co., Appellants.

Supreme Court of Idaho

January 1, 1866

SEVERAL JUDGMENT.-When a plaintiff establishes a cause of action against one or more of the defendants in an action for a tort or on a contract, and it appears in the latter case that the defendants were not joint contractors or jointly liable, he is entitled to a judgment against those against whom he establishes his cause of action.

ADMISSIONS CONTAINED IN PLEADINGS.-Written admissions of the defendants in their original answer are still admissions tending to establish the facts thus admitted, and are as much evidence to be considered as any other admissions, notwithstanding they were stricken out on defendants' own motion.

RECEIPTING FOR GOODS "IN GOOD ORDER" NOT CONCLUSIVE.-The fact that plaintiff received goods without objection, and receipted for the same as in good order raises a strong presumption in favor of defendant, but does not amount to an absolute defense to an action to recover for damages to goods while in the hands of the defendants as common carriers.

APPEAL from the Second Judicial District, Boise County.

C. B Waite, for the Appellant. May & McGraw, for the Respondents.

McBRIDE C. J.,

delivered the opinion of the court,

SMITH J., and KELLY, J., concurring.

This was an action brought against B. M. Du Rell & Co., who were charged in the complaint to be a firm composed of three defendants, to wit, B. M. Du Rell, William B. Hughes, and Edward Webb, to recover damages for injuries done to goods placed in possession of the defendants, who are alleged to be common carriers, for the purpose of transportation from the town of Umatilla, Oregon, to Idaho City, in the territory of Idaho.

The complaint is in the usual form, and the summons and complaint were duly served on all the defendants. At the February term of the district court, the defendants appeared and answered, denying that one of the defendants, Webb, was a partner in the fast freight line, or had anything to do with the transportation business of Du Rell & Co. They proceed then to deny that the goods were delivered as stated in the complaint, and alleged, for a special defense, that they, to wit, the firm of Du Rell & Co., did receive certain goods of the plaintiff at the time and place charged, for transportation to Idaho City for plaintiff, that the goods were transported to that point, and by the agent of the defendants delivered to the plaintiffs, who receipted for them in good order without objection, and that no damage to said goods was known to defendants at the time of the delivery, or claimed by plaintiffs.

Upon this answer the issue was tried in the court below. It appears, however, that when the case was called for trial, or at some other time, precisely when does not appear, the defendants asked leave to and were permitted to strike out of their answer certain portions which went to explain how the damage done to the goods occurred, and to show that the same was done by the action of the elements, and not by their neglect. No replication to the new matter set up being required by our statute, the case was heard and de-

cided on the issue made in the complaint and answer. The latitude which this practice gives to litigants on a trial is well illustrated in this case, and we think shows the baneful effect of the repeal of that clause of the practice act which provides for a replication in proper cases. Such a pleading in this case would probably have narrowed the issue on the trial to one or two points, whereas the parties now are contending in this court that the issue embraced almost every fact alleged in the complaint.

The testimony showed that the defendants brought on their freight line in the month of November, 1865, which was owned by the defendants, Du Rell and Hughes only, from Umatilla, Oregon, to Idaho City, six thousand five hundred cigars and delivered them to plaintiffs; that when they arrived they were very wet and in anything but a merchantable condition; that they were received by the plaintiffs without objection, and taken away; that as soon as they were opened by plaintiffs, the agent of defendants was notified that they were damaged, and came and examined them. The agent told the plaintiffs that he was informed by the driver on the freight line that the goods had been unloaded in the snow and might have got wet at that time. The agent refused to receive the goods back on the application of the plaintiffs. The course of business at the office of the freight line seems by the testimony to have been for consignors to receipt for their goods in good order on the company's books, or open them in their presence if damaged, or take them away under protest. Proof was also given to show the extent of the damage and the difference between the value of the goods as received and a good article.

The court below-a jury being waived-found a verdict in favor of the plaintiffs for four hundred and fifty-five dollars damages, and rendered a judgment for that amount, and costs, against the defendants, who moved thereupon for arrest of judgment and a new trial, which being overruled the defendants appeal to this court.

The errors assigned are:

1. That this was a joint action against the defendants, Du Rell, Hughes, and Webb, as composing the partnership firm

of Du Rell & Co.; that the judgment is against Du Rell and Hughes, and therefore variant from the complaint and erroneous.

2. That the evidence showing that the goods were receipted for in good order and carried away by the plaintiffs without objection precluded them from afterward claiming damages, and that the evidence was insufficient to sustain the findings of the court.

The facts in this case show that the defendants are common carriers; that they were engaged in the business of freighting generally between the points named in the complaint, and are subject to all the responsibilities and liabilities of persons engaged in that business. The legal liability of the defendants to pay damages, if the facts supported the complaint, seems not to have been seriously questioned either in the district court or on the hearing, and this relieves us of any labor in showing the application of the law of common carriers to the facts of this case.

The first question for decision is the one raised as to parties. This suit was brought against the defendants, Du Rell, Hughes, and Webb. In the answer on file, which is sworn to by one Brown as agent of the defendants, Webb is declared to have no interest in the fast freight line, nor in the partnership which owns it, and the evidence set out in the statement fully sustains that averment. This being shown, the question recurs whether if the plaintiffs show that the facts set up as to Du Rell, Hughes, and Webb are true only as to the two first, can they have a judgment in accordance with the facts as they are developed at the trial?

The rule that joint contractors must be sued at the same time has its origin in a purpose of the law to protect the rights of such persons in their relations with each other. If all contract together, it is but fair that all should be called upon for fulfillment of the contract, that the burden may be placed upon them at the same time, that perfect equality at least of liability may be preserved.

The primary reason for this is, that a joint contract presupposes joint resource for its discharge, and although this does not affect the personal liability of each one, the equity of the

transaction would imply that they should be first resorted to, and in order that this may be done, the law provides that joint contractors, if known, shall be sued simultaneously, and if the plaintiff fails to join one who is a proper party, the defendant may plead it in defense. If, in this case, the defendant Webb had been a proper party, but the plaintiff had failed to bring him in, the defendants who were brought in might have urged that defense to the action, and compelled the plaintiff to make all the parties with whom he contracted liable, or defeat his...