Cleveland, C., C. & St. L. Ry. Co. v. Heath

• Decision Date: 09 March 1899
• Citation: 53 N.E. 198,22 Ind.App. 47
• Parties: CLEVELAND, C., C. & ST. L. RY. CO. v. HEATH.
• Court: Indiana Appellate Court

22 Ind.App. 47

53 N.E. 198

CLEVELAND, C., C. & ST. L. RY. CO.

v.HEATH.

Appellate Court of Indiana.

March 9, 1899.

Appeal from circuit court, Benton county; S. P. Thompson, Judge.

Action by Joseph Heath against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Elliott & Elliott, for appellant. Daniel Fraser and Will H. Isham, for appellee.

ROBINSON, J.

Appellee recovered a judgment for damages for an alleged breach of a live-stock contract. The sufficiency of the complaint is first questioned. It is argued that appellee's complaint confesses that he did not perform all his part of the contract, and attempts to excuse performance by averring a waiver, but that no waiver is shown. The live-stock contract upon which the complaint is founded contains, among other provisions, the following: “That no claim for damages which may accrue to the said shipper under this contract shall be allowed or paid by the said carrier, or sued for in any court by the said shipper, unless a claim for such loss or damage shall be made in writing, verified by the affidavit of the said shipper or his agent, and delivered to the freight claim agent of the said carrier at his office in the city of Cincinnati, Ohio, within five days from the time said stock is removed from said car or cars, and that, if any loss or damage occurs upon the line of a connecting carrier, then such carrier shall not be liable, unless a claim shall be made in like manner, and delivered in like time, to some proper officer or agent of the said carrier on whose line the loss or injury occurs.” The complaint avers that appellee performed all the stipulations of the contract on his part to be performed, “except as herein alleged to have been waived by the defendant.” It is true, as argued, that this is an admission that appellee did not perform his part of the contract. But the complaint also avers that appellee did, within five days after the damages were sustained, make his claim in writing therefor as provided for in the contract; that “the general freight claim agent of said defendant did receive in his office in the city of Cincinnati said claim, and afterwards, expressly waiving the verification of said claim, and making no objection thereto because it was not verified, acknowledged that he had received notice of said claim, but that it would not consider the same unless he would produce the original live-stock contract, and that it would not consider the same unless he would produce a printed market report, and that it would not consider the same unless he would produce proof of disinterested persons of the shrinkage of said cattle; * * * that in the manner and form aforesaid the said defendant did waive the verification of said notice, because it made no objection to the same on that ground, but made other demands as aforesaid; * * * that the plaintiff was at all times willing to verify said notice and demand, but was never requested thereunto.” The contract provides that a claim for damages shall be delivered to appellant's freight claim agent, and the averment of the complaint is that the claim was sent to the general freight claim agent; but it is further averred that this officer received the claim, assumed to act upon it, and impliedly agreed to consider it, if certain facts were furnished him. But he made no objection to the want of verification. After he had received the claim, acknowledged its receipt, and said he would not consider it, unless the original contract was produced, and also a printed market report, and proof of disinterested persons of the shrinkage of the cattle, it cannot be said that the pleading shows simply a declination to consider the claim. It must be held, under such facts, that the claim was then pending, and further action postponed until the matters requested were furnished. The complaint sufficiently shows that a claim for damages was sent to an officer of appellant; that he received it, and assumed to act for appellant in the matter of its adjustment. A person held out by appellant as its freight claim agent, or its general freight claim agent, would be presumed to have authority in the adjustment of such claims as that at bar; and, when he assumes to act upon such a claim, he would have authority to do such acts as are incident to its adjustment. The provision requiring a verified claim was inserted by the company, and for its own benefit; and, if an agent held out by it as a freight claim agent receives the claim, and assumes to act upon it, his acts in that regard will be the acts of his company, and the waiver of a condition precedent by him will bind the company. By proper averments the complaint shows the particular damages appellee had sustained, and then avers “that this plaintiff did, within five days after said damages were sustained as aforesaid, make his claim in writing therefor as provided for in said contract.” We cannot agree with counsel that this is pleading a conclusion. It is the averment of a fact,-that appellee within a certain time presented a claim for the damages which he has described in his complaint. The suit is on the contract. The damages are set out in the pleading, and for these damages thus described he presented a claim. In Kohler v. Montgomery, 17 Ind. 220, cited by counsel, suit was brought against the maker and indorser of a note; and it was averred that the note was duly presented for payment, but the complaint did not name the day when demand was made. It was held that, as it was not necessary to make the protest and notice a part of the complaint, it did not show the day when demand was made, and, as it simply averred that the note was duly presented for payment, a demurrer would not have raised the question. In Harbison v. Bank, 28 Ind. 133, cited by counsel, suit was brought against the drawer of a bill of exchange; and an averment that the bill was “duly presented for payment at the place where payable” was held bad, against a demurrer, for not showing that the presentment was at the time of the maturity of the bill. In the case at bar it is not simply averred that a claim was duly presented, but that it was presented as provided in the contract, and that the claim was for such damages as were described in the complaint. Whether the requirement that a claim for damages shall be delivered to appellant at Cincinnati, Ohio, within five days, is a reasonable one, it is not necessary to decide, because the pleading shows that a claim was presented, and was received and acted on. The limitation could be waived by the company. An unverified claim was presented within the time, and it must be held that the pleading shows the verification was waived. The true rule is that where a claim is filed in such a case, and specific objection is made for not acting upon it, any other objection, which, if made, could have been readily met, is waived. See Bartlett v. Adams, 43 Ind. 447;Gerrish v. Norris, 9 Cush. 167;Inhabitants of Embden v. Inhabitants of Augusta, 12 Mass. 307; Railway Co. v. Brown, 152 Ill. 484, 39 N. E. 273;Goodwin v. Insurance Co., 73 N. Y. 480;Owen v. Insurance Co., 57 Barb. 518;Railway Co. v. Steele, 6 Ind. App. 183, 33 N. E. 236. In the case of Railway Co. v. Brown, supra, where this same question was under consideration, the court said: “It is next urged that the appellees were not entitled to recover, because no claim for the loss or damage sued for was made in writing, and verified by an affidavit, and delivered to the general freight agent of the appellant company within five days after the stock was removed from the car, as was required should be done by the tenth clause of the contract of shipment. It was proven that one of the appellees, within less than the required five days, indited a letter to the claim agent of the appellant company, in which he stated the facts of the injury to the cow, and also that the extent of the injury, or the amount of damages likely to result therefrom, could not then be ascertained, etc. This letter was placed in an envelope, which was addressed to the claim agent, and delivered, in less than five days after the injury, to Mr. Todd, who was the station agent of the appellant company at New Berlin, a station on the line of its road. * * * The letter first written by Mr. Brown was within the five days after the removal of the stock from the car. It was not verified by an affidavit, and for that reason, and perhaps others, was not in full compliance with the agreement regarding notice. The jury was warranted, however, in believing that the company received it without making any objection or pointing out its defects, and afterwards treated the claim as pending for adjustment upon its merits. We think it was rightly held that the appellant company had waived further or other notice of the alleged loss.”

The contract itself does not fix the time when the cattle were to be delivered at their destination, and it is argued that there is no showing of any wrongful or unavoidable delay. It is a well-settled rule that a written contract merges all parol negotiations between the parties. It is also a settled rule that in construing a contract the primary object is to ascertain the intention of the parties at the time the contract was made. In arriving at this intention the court may consider the situation of the parties, their motives in dealing with each other, and the objects sought to be accomplished, so that there may be extrinsic matter averred which will aid the court in construing the contract as written. It is averred that it was known and understood by appellant that appellee was shipping his cattle for the market in the forenoon of January 28th; that appellant knew the time of the opening of the market; that the stock was loaded in time for the appellant's 4 o'clock train on the evening of January 27th, and, had they been transported with reasonable...