Gates v. Chi., B. & Q. R. Co.

• Decision Date: 17 October 1894
• Citation: 60 N.W. 583,42 Neb. 379
• Court: Nebraska Supreme Court
• Parties: GATES v. CHICAGO, B. & Q. R. CO.

42 Neb. 379

60 N.W. 583

GATES

v.CHICAGO, B. & Q. R. CO.

Supreme Court of Nebraska.

Oct. 17, 1894.

Syllabus by the Court.

1. The duty of a common carrier of goods is not only to safely carry, but to deliver; and delivery must be made within a reasonable time, at the place and to the person to whom the goods were consigned.

2. The delivery of goods by a common carrier to the consignee thereof is made at the peril of the carrier, unless when made the consignee surrenders the bill of lading either made or indorsed to himself.

3. The bill of lading issued by a carrier to the owner or shipper is the symbol of ownership of the goods shipped, and, though not negotiable, is assignable.

4. A railway company received from a connecting carrier at Omaha, Neb., a car of potatoes, consigned to W., at Bradshaw, Neb. W. was the agent of the owner of the potatoes. On arrival of the car of potatoes at Bradshaw, the railway company notified W. thereof, and at his direction delivered the potatoes to one K., to whom W., acting for the owner, had sold the potatoes. Held: (1) That the delivery to K. was, in effect, a delivery to W., the consignee; (2) that K. having failed to pay for the potatoes, the carrier was not liable to the owner thereof for their value, although the bill of lading for the goods was not surrendered to the carrier before delivery, as the instruction of W. to deliver to K. was, in effect, the owner's instruction, and it not appearing that the bill of lading for the goods had been assigned or indorsed to any one by the owner or shipper.

Error to district court, Merrick county; Sullivan, Judge.

Action by Leroy H. Gates against the Chicago, Burlington & Quincy Railroad Company. Judgment for defendant, and plaintiff brings error. Affirmed.W. T. Thompson, for plaintiff in error.

A. W. Agee, for defendant in error.

RAGAN, C.

Leroy H. Gates sued the Chicago, Burlington & Quincy Railroad Company, hereinafter called the “railway company,” in the district court of Merrick county. Gates alleges as his cause of action against the railway company that on the 10th day of October, 1894, he delivered to it at Omaha, Neb., a car load of potatoes, belonging to him, of the value of $513; that the railway company, for a consideration, undertook to safely and securely carry the car of potatoes to Bradshaw, Neb., and there deliver them to one A. B. Warrell, who was then and there his (Gates') agent; that the railway company did not deliver said car of potatoes to said Warrell, or to any person authorized to receive the same. The answer of the railway company admitted that it received the car of potatoes, and contracted to carry them to Bradshaw, Neb., and there deliver them to Warrell, Gates' agent; and alleged that on their arrival at Bradshaw it delivered said car of potatoes to one Klock & Hankins, by order of said consignee, Warrell. The reply of Gates denied the allegations of new matter in the answer. It will thus be seen that the chief issue litigated in this case was whether Warrell instructed or authorized the railway company to deliver the car of potatoes to Klock & Hankins. The jury found this issue in favor of the railway company, and from the judgment pronounced upon such finding Gates brings the case here for review.

1. The errors assigned and argued in the brief of counsel for the plaintiff in error relate to the giving to the jury by the court of three instructions at the request of the railway company: (1) “The law does not favor double agencies, and where a person employs or procures an agent of a railroad company to act for him in the buying or selling of merchandise of any kind such agent will, so far as such transaction is concerned, be deemed the agent alone of the person for whom he so acts in buying or selling of such merchandise, and not the agent of the railway company. In this case, if you believe from the evidence that B. L. Foster acted in the interest and on behalf of A. B. Warrell, and at his request, in securing from Klock & Hankins an order for the car load of potatoes in question, and making the sale of such potatoes to Klock & Hankins, and in arranging for the assorting and weighing of the same, then you are instructed that in procuring such order and making such sale, and in conducting the transaction with Klock & Hankins concerning the sale and delivery of said potatoes, said Foster must be deemed the agent of said Warrell, and not of the said railroad company, and his action in delivering such potatoes to said Klock & Hankins will be binding on the plaintiff and said Warrell, and the defendant cannot be held liable for any of the acts of said Foster in delivering said potatoes to said Klock & Hankins.” The correctness of this instruction is assailed on three grounds: (1) It is said that there was no issue made, either in the pleadings or evidence in the case, as to whether Foster, who was the railway company's agent at Bradshaw, was the agent of Warrell, the consignee of the car of potatoes, and for that reason that the instruction is erroneous. The evidence in the case tended to show that Warrell had inquired of Foster whether the latter could find a purchaser for a car load or two of potatoes in Bradshaw; that Foster made some inquiries in Bradshaw for persons desiring to purchase a car load of potatoes, and that Klock & Hankins agreed to purchase a car load of potatoes of a certain quality at a certain price; that the car load of potatoes in controversy was shipped by Gates, or by Warrell acting for him, to Bradshaw, consigned to Warrell, to fill the order given by Klock & Hankins to Foster; that after the car of potatoes arrived in Bradshaw, Klock & Hankins inspected them, and refused to take them, because they were not of the quality they had agreed to buy; that communications immediately passed by wire between Warrell and Foster to the effect that Warrell instructed Foster to allow Klock & Hankins to take the potatoes, assort them, and do the best they could with them; and that, in pursuance of these instructions from Warrell, Foster delivered the car of potatoes to Klock & Hankins. In view of this evidence, we do not think that the instruction complained of is erroneous. (2) The second objection urged to the instruction relates to the first sentence thereof. Counsel say: “The instruction is erroneous because it contains a partial or incomplete statement of an abstract proposition of law in this: that it contains the statement that ‘where a person employs or procures an agent of a railroad company to act for him in the buying or selling of merchandise, such agent will, so far as such transaction is concerned, be deemed the...