Fleming v. Mills

• Decision Date: 15 July 1858
• Citation: 5 Mich. 420
• Court: Michigan Supreme Court
• Parties: John Fleming and others v. Merrill I. Mills and others

5 Mich. 420

John Fleming and others v. Merrill I. Mills and others

Supreme Court of Michigan

July 15, 1858

Heard July 12, 1858

Error to Wayne Circuit.

The case, so far as material, is fully set out in the opinion of the court.

Judgment of the court affirmed, with costs.

J. W Longyear, Wm. Gray and S. Larned, for plaintiffs in error.

Walkers & Russell, for defendants in error.

OPINION

Martin Ch. J.:

From the evidence in this case, it appears that in April, 1854 the plaintiffs, by an agent duly authorized, contracted with the defendants as follows: The plaintiffs sold to defendants one hundred gross of McLane's medicines, at ten dollars per gross; "fifty gross to be shipped soon," "the other fifty gross not to be sent till the 1st of November following, unless the defendants ordered it sent sooner--the whole on six months' time after shipment;" that they were to be shipped via Cleveland; that the plaintiffs were notified of this contract, and shipped the first fifty gross upon such information. On the 1st of November following, the remaining fifty gross--the bill of medicines in question--were also shipped by the plaintiffs, but did not arrive in Detroit until some time in the spring of 1855, when the defendants refused to receive them; and this action is brought to recover their contract price.

The evidence shows that the Ohio & Pennsylvania Railroad Company were common carriers between Pittsburgh and Detroit; that, at the time these goods were received, they sent goods to Detroit sometimes by Cleveland and sometimes by Mansfield; that the goods, with a receipt, were sent by plaintiffs to the depot of the railroad company, the goods there delivered, and the receipt signed by one Carpenter, the agent of the company; and that such a receipt is usually handed to the draymen on the delivery of the shippers' goods to the carrier.

The receipt was as follows:

Pittsburgh, Novem., 1854.

To Ohio & Penn'a Rail Road.

Received of Fleming Bros., in good order, 35 Boxes McLane's Vermifuge, 7.00

15 do. do. Pills, 1.80

For M. I. Mills & Co., Detroit.

To Mansfield. Carpenter.

The words, "To Mansfield," were added by Carpenter, in pencil.

Carpenter as agent, then executed the usual shipping bill for the goods, having first erased therein Detroit as the place of delivery, and substituted Mansfield.

On the trial the court was asked by plaintiffs in error to charge the jury that if the railroad company were common carriers the first receipt, or dray ticket, standing by itself, was prima facie evidence of an obligation on their part to carry the goods to Detroit. This charge the court refused to give, but did charge that it only evidenced an obligation to keep the goods safely, and redeliver them, or account for their value. ...