Crossan v. New York & N.E.R. Co.

• Decision Date: 10 May 1889
• Citation: 149 Mass. 196,21 N.E. 367
• Parties: CROSSAN v. NEW YORK & N.E.R. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

149 Mass. 196

21 N.E. 367

CROSSAN v. NEW YORK & N.E.R. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

May 10, 1889

COUNSEL

S.J. Thomas and C.P. Sampson, for plaintiff.

W.C Loring and R.M. Saltonstall, for defendant.

OPINION

HOLMES, J.

This is an action of trover for the conversion of 19 horses. The horses were shipped by the plaintiff on the Pennsylvania Railroad, at Philadelphia, for Boston; were delivered by that company to another, at Jersey City; and were carried the last part of the way over the defendant's line. The plaintiff prepaid the freight demanded, which was $44. But the Pennsylvania Railroad, in making up the total, allowed only $32 for carriage east of Jersey City, instead of $50, as it should have done by the defendant's tariff; so that there were $18 still to be paid, if the defendant was to receive its usual rate. At the time the defendant accepted the goods for carriage it had notice of the contents of the way-bill from which perhaps a jury might have inferred that a railroad agent, versed in its abbreviations, would have understood that there had been an attempt to prepay the freight. It had not seen the written contract between the plaintiff and the Pennsylvania Railroad. This contract was shown to the defendant before the refusal of the latter to deliver. It contained the words, "Freight, 44.00, prepaid;" and also a promise by the plaintiff to pay the Pennsylvania Railroad at the rate of 22 cents per hundred pounds, which would make the total $44. On the other hand, it showed that the horses were to be carried to Boston, and did not purport to bind the Pennsylvania Railroad as a carrier for the whole distance, but contemplated delivery to other carriers, not specified. We are to take it also that the Pennsylvania Railroad was not the agent of the defendant, as the plaintiff's counsel disclaimed that ground. When the horses arrived at Boston the defendant refused to deliver them, except upon payment of the amount unpaid, which is the alleged conversion.

The question is whether the defendant had a lien for the freight due to it, according to its schedule, and unpaid. The answer is not to be found in the letter of the document, but in general principles of law and considerations of policy. The plaintiff contends that the Pennsylvania Railroad was a special agent, having no ostensible authority greater than that which he actually intended to give it; or, at least that, if the defendant had notice that he had prepaid the freight demanded, it had notice that the Pennsylvania Railroad had no authority to give it a lien for any further sum which the defendant might be entitled to demand. This view is not without sanction. Marsh v. Railway Co., 3 McCrary, 236. But we think that there are weightier considerations in favor of the defendant. Suppose that it had had the facts definitely before it. It would have seen, to be sure, that the plaintiff did not contemplate paying any more money, but it would have seen also that he did contemplate and desire that the horses should be carried through to Boston by a continuous and speedy passage. The existence of the latter expectation is confirmed by the plaintiff's declaration and by his testimony. He was not entitled to have both his expectations made good by the defendant. An unforeseen case had arisen, and the defendant was called on by the plaintiff's forwarding agent to act at once in some way. Potts v. Railroad Co., 131 Mass. 455. The forwarding agent, whetever its obligations to the plaintiff, only consented to be liable personally to the defendant for $32, but required the defendant to forward the goods. The defendant was not bound to carry for less than its full charge, if it had any right to do so. But if the demand to forward was authorized ostensibly or by implication,--that is to say, if the carriage would give it a lien,--it was liable to the plaintiff if it refused, except that it might demand prepayment. The plaintiff was not present, and it might take time and cost money to communicate with him. The horses were perishable, and their keep would probably have cost more than the unpaid freight, if they had been delayed, although we do not now decide whether these last facts make a difference in the law. If the plaintiff had a contract with the Pennsylvania Railroad, that company could...