Dunham v. Boston & M.R. Co.

• Decision Date: 21 July 1879
• Citation: 70 Me. 164
• Parties: DANIEL M. DUNHAM v. BOSTON & MAINE RAILROAD COMPANY.
• Court: Maine Supreme Court

70 Me. 164

DANIEL M. DUNHAM v. BOSTON & MAINE RAILROAD COMPANY.

Supreme Judicial Court of Maine.

July 21, 1879

ON REPORT.

CASE for damages for the detention and non-delivery, and the not forwarding, within a proper and reasonable time, of a car of mowing machines and parts of mowing machines, whereby the plaintiff was unable to fill his contract for and sell forty-five machines, and to use the parts in repairing other machines.

Plea general issue.

The following facts were agreed:

In the summer of 1876, a car containing mowing machines and parts of mowing machines was shipped from Little Falls, N. Y., to the plaintiff, directed to Bangor, Maine.

After coming over various connecting railroads, in the ordinary course of transportation, the car arrived in Boston over the Fitchburg railroad, July 1, 1876; and on that day (which was Saturday), and probably in the afternoon, it was placed by the latter company on the track of the defendant company in Charlestown Mass., at usual place of transfer between the roads, and what is called a memorandum bill was left at the crossing man's house near by. No notice was given of the same by the servants of the Fitchburg company to the servants of defendant company, and it is not customary to give such notice, each company taking cars which they find upon their track.

On July 3, 1876, the servants of defendant company took said car into their possession, and got the memorandum bill where it had been left. The regular way-bill of the freight in said car was, by mistake on the part of some servant of the Fitchburg company, delivered on said July 3 at the freight office of the Eastern railroad company, in Boston, and was not delivered to defendant company until July 11, 1876, when it was delivered at their general freight office in Boston.

Said car was taken by defendant company, on said July 3, over the line of their road to Portland, Maine, reaching there on the morning of July 4. It remained in Portland on the track of defendant company until July 12, 1876, and was not meanwhile offered to the Maine Central railroad company, the next connecting carrier. On July 12, 1876, the car was delivered to said Maine Central company by defendant company, and on July 13 was brought through to Bangor, the place of its ultimate destination.

It was also admitted that, by due course of transportation, the car would have arrived July 5, but did not in fact arrive until July 14, when, as plaintiff contended, the term of sales for that season had passed and the goods not worth more than forty per cent of their market price when ordered.

In defense it was admitted that C. L. Hartwell, now, and in July, 1876, the general freight agent of said Fitchburg company, would testify that:

" The usual and customary method of transacting business between connecting lines of railroad, when freight is transported over such connecting lines, is this: When the freight has been carried over one road, the yardman, so called, at the terminus of that road delivers the car containing the freight to the yardman of the next connecting road, at the same time giving him a memorandum bill, so called, which bill shows the name of the person to whom the freight is directed, the place of its ultimate destination, and sometimes a specification of what the freight is, but which does not show the amount of charges upon the freight for carriage up to that point. It is also usual, upon the same day with the delivery of the freight and the memorandum bill, for the delivering road to make out at their freight office a regular way-bill of the freight, which regular way-bill shows, in addition to everything shown by the memorandum bill, the amount of the charges of the delivering road upon the freight, which charges include their charge for carriage over their own line and whatever charges they have paid or become responsible for for transportation over other roads over which the freight may have come, and deliver this way-bill at the freight office of the receiving road.

According to the custom of doing business between connecting roads whenever one road receives freight from another connecting road, they become responsible to the road from which they receive the freight for all charges they have for their own carriage and for back charges, whether paid by them or which they in their turn have become responsible for; and the last road, which carries the freight to place of ultimate destination, retains the freight until they have collected all these charges.

In some cases the regular way-bill is not delivered on the same day with the freight, and in such cases the custom of the Fitchburg railroad company, of which I am, and in July, 1876, was, the general freight agent, is to receive the freight with the memorandum bill, and send it forward at once, and afterwards, as soon as received, sending on the regular way-bill. Such, too, has been the habit of the Boston & Maine railroad company in doing business with our road. There are, however, some roads which refuse to receive freight at all without the regular way-bills showing charges.

In all cases, upon the receipt of freight, the company receiving it becomes responsible for all charges for previous transportation over connecting lines to the company from which they have received the freight."

It is also admitted that W. J. C. Kenney, now, and in July, 1876, the general freight agent of the defendant company, would testify exactly the same as Mr. Hartwell, both in relation to the general custom of doing business between connecting roads, and as to the particular custom of the Boston & Maine and Fitchburg companies, in cases where regular way-bill showing charges is not delivered on the same day with the freight.

It is also admitted that Payson Tucker, now, and in July, 1876, the superintendent of the Maine Central railroad company, would testify as follows:

" The established rule of the Maine Central railroad company is, not to receive goods from connecting lines to be forwarded unless such goods are accompanied by a regular way-bill, or memorandum, giving name of consignee, destination and charges due. This rule was in full force and effect during the year 1876, and was adopted in accordance with orders from the Superintendent's office."

If asked by plaintiff's counsel, Mr. Tucker would also say that, if perishable goods were offered to his company without the regular way-bill accompanying, he thinks he should direct their being received and forwarded, if thereto particularly requested by the connecting road, and upon being fully protected from all liability resulting therefrom by the road offering the goods; but would also add that such cases did not often occur, and he did not remember any such actual case.

It is also admitted that Robert A. McClutchy, now, and in July, 1876, the freight agent of the defendant company, in Portland, would testify that, as such agent of the defendant company in Portland, the place of connection of the two roads, the regulations of the Maine Central railroad company, testified to by superintendent Tucker, had been communicated to him; that the business between the two companies was done in accordance therewith; and that in every case where he, in behalf of the defendant company, had offered freight to the Maine Central company without accompanying way-bill showing charges, the freight had been uniformly refused, and that in several cases he did so offer freight and have it refused.

It is also admitted that Charles M. Chase, of Reading, Mass., would testify that, in July, 1876, he was in the employ of the defendant company, in Boston, as yard clerk in the freight department. His duties as such clerk were to receive memoranda accompanying freight received by defendant company from connecting roads in Boston, to go to the freight office for the way-bills of the freight, and from the memoranda and way-bills to make out new memoranda to accompany the freight over the line of the defendant company. The memoranda made by him were known as conductors' memoranda, and were to be passed in by conductors with the way-bills of freight at the freight office of the company, at the end of their route.

He remembers a car load of mowing machines received from the Fitchburg railroad company, in Boston, directed to D. M. Dunham, Bangor, Maine. He thinks the memorandum received by him with the car was dated July 1, 1876, and was received by him this same day the car was delivered to defendant company, viz: July 3, 1876. He knows the car was forwarded to Portland over defendants' road on the same day it was received; there was a delay in the delivering of the way-bill of this car load of machines, and he distinctly remembers of going during this delay to Mr. Saville, then the freight agent of the Fitchburg company, in Boston; he had before going at least twice reported the non-delivery of this way-bill at defendant company's freight office, to Charles E. Merritt, that he might write to the Fitchburg officials for it. When he personally went to Mr. Saville for it, Saville told him that the bill had not yet got round. He remembers this transaction from having looked into the car, noticing the character of the freight, and thinking it had better go forward at once. He personally attended to its being attached to that day's train, and spoke to the conductor of the train about it. He also remembers it from the unusual delay in the delivery of the way-bill, and from the matter being investigated soon after, when it was fresh.

The memoranda sent by him with freight contain the name of place on defend...