Brother v. Skelton

• Decision Date: 31 January 1873
• Citation: 67 Ill. 83,1873 WL 8132
• Court: Illinois Supreme Court
• Parties: STAFFORD & BROTHERv.WALTER & SKELTON.

67 Ill. 83

1873 WL 8132 (Ill.)

STAFFORD & BROTHER

v.WALTER & SKELTON.

Supreme Court of Illinois.

January Term, 1873.

APPEAL from the Circuit Court of Macon county; the Hon. ARTHUR J. GALLAGHER, Judge, presiding.

Mr. I. L. BUCKINGHAM, for the appellants.

Messrs. SMITH & STERRETT, for the appellees. Mr. JUSTICE SHELDON delivered the opinion of the Court:

This was an action, brought by appellees, to recover the price of twenty barrels of apples purchased of them by appellants about the last of November, 1868, at $3.25 per barrel. The appellees, at the time, resided at Orville, Ohio, and the appellants at Decatur, Illinois. Appellants ordered the apples to be delivered on the railroad at Orville.

It appeared that appellees shipped the apples at Orville, Ohio, on the 4th of December, 1868, to Stafford & Bro., the appellants, Decatur, Illinois, and that the appellees released the railroad company from liability for any loss or damage that might accrue to the apples while in transit, and guaranteed the freight, which they subsequently, on the 17th of March, 1869, paid. The apples never came to hand.

Appellees recovered a judgment for $65.

The only question made here is upon the legal effect of appellees' release and guaranty of the freight, appellants insisting that on account thereof, they are not liable.

They claim that, in this respect, there was a failure to comply with the rule of law which requires that the vendor, in delivering goods to a carrier, must exercise due care and diligence, so as to provide the consignee with a remedy over against the carrier, in order to give to a delivery to a carrier the effect of a delivery to the vendee. Bachman v. Levi, 3 Campb. 414; Clarke v. Hutchings, 14 East, 475; Ward v. Taylor, 56 Ill. 494.

It was in proof that the railway company would not receive the property without the execution of the release.

The order of appellants was, to send the apples by railroad, and to send them immediately. The order included the usual and appropriate means to accomplish the end. If the railway company would not receive the apples for transportation except upon the condition of executing such a release, then the giving of the same was but a necessary and proper act to be done in order to send the apples by the railroad; and there would be an implied authority to do such act, resulting from the direction to send the property in that way.

It would seem, then, that what was done in this respect was no more than a fair compliance with appellants' order to send by railroad,...