Garden Grove Bank v. Humeston & S. R. Co.

• Decision Date: 11 December 1885
• Citation: 25 N.W. 761,67 Iowa 526
• Court: Iowa Supreme Court
• Parties: GARDEN GROVE BANK v. HUMESTON & S. R. CO.

67 Iowa 526

25 N.W. 761

GARDEN GROVE BANK

v.HUMESTON & S. R. CO.

Supreme Court of Iowa.

Filed December 11, 1885.

Appeal from Lucas district court.

The plaintiff seeks to recover of the defendant the sum of $550 which it advanced upon a bill of lading issued upon the shipment of certain walnut lumber by the defendant, and which bill of lading was assigned to the plaintiff. The right of action is based upon the claim that the defendant failed to comply with its contract of shipment, and by negligence delivered the lumber to parties not authorized to receive the same, by which plaintiff was damaged in the amount advanced, and interest. There was a trial by jury, and a verdict and judgment for the defendant. Plaintiff appeals.T. M. Stuart, for appellant, Garden Grove Bank.

W. W. Morseman, for appellee, Humeston & S. R. Co.

ROTHROCK, J.

The facts necessary to a determination of the questions of law involved in the case are not disputed. They are as follows: One Henry Zohn was engaged in buying walnut logs and walnut lumber along the line of the railroad of the defendant and shipping the same to Chicago. About the twentieth day of August, 1881, he caused three cars to be loaded with said lumber, for shipment, at Van Wert, a station on the defendant's railroad. Zohn was indebted to Wells Bros. in the sum of $550 for this lumber, and on the twenty-third day of August, 1881, before any bill of lading was issued for the shipment of the property, Wells Bros. caused the lumber on said cars to be attached to secure their claim against Zohn. On the same day Wells Bros. and Zohn met at said station, and agreed that the bill of lading should be issued to Wells Bros. as consignors, and they should hold it as security for their claim against Zohn, and that they would take such bill of lading to the Garden Grove Bank, and draw a sufficient amount of money thereon to pay the claim of Wells Bros. The conversation in regard to this arrangement was in the presence of the station agent of the defendant, and he knew, when he issued the bill of lading, that Zohn and Wells Bros. expected and intended to use the same at the Garden Grove Bank to draw or receive money thereon. The said agent thereupon issued and delivered to Wells Bros. a bill of lading, of which the following is a copy:

“HUMESTON & SHENANDOAH R. R. CO. BILL OF LADING.

FREIGHT OFFICE, VAN WERT, August 23, 1881.

Received from Wells Bros., in apparent good order, by the Humeston & Shenandoah R. R. Co. the following described packages (contents and value unknown) consigned as marked and numbered in the margin, upon the terms and conditions hereinafter contained, and which are hereby made a part of this agreement, also subject to the conditions and regulations of the published tariffs in use by said railroad company, to be transported over the line of this road to Chicago station, and there delivered in like good order to the consignee or owner, at said station, or to such company or carriers (if same are to be forwarded beyond said station) whose line may be considered a part of the route, to the place of destination of said goods or packages; it being distinctly understood and agreed that the responsibility of this company as a common carrier shall cease at the station where delivered or tendered to such person or carrier; but it guaranties that the rate of freight for the transportation of said packages shall not exceed rates as specified below, and charges advanced by this company, upon the following conditions, [read the conditions.] The owner or consignee to pay freight or charges as per specified rates upon the goods as they arrive. Freight carried by the company must be removed from the station during business hours on the day of its arrival, or it will be stored at the owner's risk and expense; and in the event of its destruction or damage from any cause while in the depots of the company, either in transit or at the terminal point, it is agreed that the company shall not be liable except as warehousemen. It is agreed, and is a part of the consideration of this agreement, that the company will not be responsible for the leakage of liquors or liquids of any kind; breakage of glass or queen's-ware; the injury or breakage of castings, carriages, furniture, glass show-cases, hollow-ware, looking-glasses, machinery, musical instruments of any kind, packages of eggs, or picture frames; loss of weight of coffee, or grain in bags or rice in tierces; or for any decay of perishable articles; nor for damage arising from effects of heat or cold; nor for loss of nuts in bags, lemons or oranges in boxes, unless covered with canvass; nor for loss or damage of hay, hemp, cotton, or any article the bulk of which renders it necessary to transport in open cars, unless it can be shown that such loss or damage occurred through negligence or default of the agents of this company. Goods in bond subject to custom-house regulations and expenses. The company is not responsible for accidents or delays from unavoidable cause; the responsibility of this company, as carriers, to terminate on the delivery or tender of the freight as per this bill of lading to the company whose line may be considered a part of the route to the place of destination of said goods or packages. In the event of the loss of any property for which the carriers may be responsible under this bill of lading, the value or cost of the same at the point and time of shipment is to govern the settlement for the same, except the value of the article has been agreed upon with the shipper, or is determined by the classification upon which the rates are based. And in case of loss or damage of any of the goods named in this bill of lading for which the company may be liable, it is agreed and understood that this company may have the benefit of any insurance effected by or on account of the owner of said goods. This receipt to be presented without erasure or alteration.

+------------------------------------------------------------------------------+
                ¦Marks and     ¦Car No.       ¦Description of Articles     ¦Weight, Subject to ¦
                ¦Consignees.   ¦              ¦Given by Consignee.         ¦Correction.        ¦
                +--------------+--------------+----------------------------+-------------------¦
                ¦              ¦560 A. & N    ¦Walnut lumber               ¦22,000             ¦
                +--------------+--------------+----------------------------+-------------------¦
                ¦              ¦1006 K. S. J. ¦Walnut lumber               ¦22,000             ¦
                ¦              ¦& C. B.       ¦                            ¦                   ¦
                +--------------+--------------+----------------------------+-------------------¦
                ¦              ¦9450 S.       ¦Walnut lumber               ¦22,000             ¦
                +------------------------------------------------------------------------------+
                

“* * * Freight to be paid upon the weight by the company's scales, but no single shipment to be rated at less than 100 lbs. Car-load freight subject to the current rules as to the minimum and maximum weights. Charges advanced, (if any.) This bill of lading to be surrendered before property is delivered.

S. O. CAMPBELL, Freight Agent.”

The bill of lading was issued and delivered on the evening of the twenty-third day of August. On the next morning Wells Bros. and Zohn appeared at the Garden Grove Bank, and requested the cashier to advance them $550 on said bill of lading. He consented to do so. Thereupon Wells Bros. assigned the bill of lading to Zohn, and he assigned the same to C. S. Stearns, cashier of the bank, and at the same time Zohn executed a draft of $550 in favor of said cashier on one J. H. Wallace, of Chicago, and the bill of lading, and draft attached thereto, were delivered to the cashier, in consideration whereof he advanced and paid for said bank to Wells Bros. the sum of $550. It will be observed that there is no person named as consignee in the bill of lading. The space...