Gordon v. Ward

• Citation: 16 Mich. 360
• Court: Michigan Supreme Court
• Decision Date: 13 January 1868
• Parties: William J. Gordon et al. v. William Ward et al

16 Mich. 360

William J. Gordon et al. v. William Ward et al

Supreme Court of Michigan

January 13, 1868

Heard January 10, 1868

Case made after judgment from Saginaw circuit.

This was an action brought to recover of defendants the value of certain goods sold and delivered.

The declaration was on the common counts, and the plea the general issue.

The defendants, who lived at East Saginaw, purchased the goods of plaintiffs, who did business at Cleveland, Ohio, and directed them to send the same by railroad. The plaintiffs did so, and took a bill of lading which contained certain restrictions on the common law liability of the carrier, amongst which was exemption from loss by fire.

The goods were burned in the depot of the Detroit & Milwaukee railroad company at Detroit.

Judgment was rendered for defendants in the court below.

The facts are stated in the opinion.

Judgment reversed, and the plaintiffs had judgment in this court for $ 301.40, the amount due, together with costs of both courts.

Webber & Smith, for plaintiffs:

The plaintiffs were directed to ship the goods in question by rail.

The defendants had done business previously with them to a considerable amount. The plaintiffs were not aware tat defendants were ignorant of the usual and only mode of shipment of goods by rail at Cleveland; but, on the contrary had reason to believe them acquainted with it.

Whether the conditions in the bill of lading were reasonable or unreasonable, whether the railroad company had a right to impose such conditions, or whether the conditions be void are questions in which the plaintiffs have no interest in this case.

They were directed to ship by rail. They did ship by rail in the usual and only mode by which shipment could be made, and, by so doing, fulfilled their contract, and the title of the goods became vested in defendants, and the loss must fall upon them.

B. J. Brown, for defendants:

1. A common carrier is bound to receive and carry all goods offered for transportation, subject to all the responsibilities incident to that employment, and is liable to an action in case of refusal: 1 Pars. on Cont., 676; 6 Mich. 257, 261.

2. But a common carrier may limit his liability by express contract or notice assented to, which is equivalent to express contract: 6 Mich. 262; Id., 257; Redf. Rail., 270.

a. Such assent is presumed from previous dealings: Red. Rail., 272, 274.

b. The terms of the contract between the plaintiffs and the railroad company is a fact to be proved as any other fact, by pertinent evidence: 5 Mich. 379

3. The court will presume the foreign law to be the same as our own, unless the contrary is shown: 2 Doug. 515.

4. In the absence of authority from the defendants, the plaintiffs could not reduce the common law liability of the railroad company as a carrier, and charge the defendants: 3 Camp. 414; 14 East, 375; 1 Bing. N. C., 671; 8 T. R., 330.

a. Such authority can not be inferred from the custom of the Cleveland & Toledo railroad company, to issue receipts only in the form of the one taken on the shipment of these goods: 2 Sand. Sup. Ct., 137.

It should also appear that the defendants knew of the custom at the time of ordering the goods, and acted in reference to it: 3 Mich. 38.

OPINION

Cooley, J.

The defendants ordered a bill of tobacco from the plaintiffs, at Cleveland, and directed it to be sent to them at East Saginaw, by rail, and it was sent accordingly. Unfortunately, it was burned while in transit, by the burning of the Detroit & Milwaukee railroad warehouse, at Detroit, and defendants now refuse to pay for it.

As delivery to the carrier, in pursuance of the instructions given, would be equivalent to a delivery to the defendants, and would have the effect to vest the title to the property in them, and put it at their risk, it is clear that they should pay for it unless there is something peculiar in this case which takes it out of the general rule.

The defendants say there is this peculiarity in the case which excuses them from payment; that the plaintiffs, without any authority, and in violation of the spirit of their instructions, entered into a special contract with the carriers, by receiving a bill of lading which exempted the carriers from liability for a loss occurring by fire, whereby the defendants are deprived of any remedy against the carriers for the loss, when, on the contrary, their duty was to send the goods under the carrier's common law liability. The plaintiffs reply that they followed instructions literally, and that there were at the time no carriers of goods by rail from Cleveland who would receive and transport property at all except under these restrictive bills.

All the evidence we have on this subject is the following: All the railroad companies doing business at Cleveland, in 1864 adopted a form for a receipt or bill of lading such as was used in the present case, and resolved that they would receive and transport property on no other terms, and sent round copies of it to the plaintiffs and other shippers, notifying them of their determination. From that time this form has been used exclusively, and railroad agents and others testify that property would not be received, at the time of the shipment in question, unless this form was used, and that it was of no use to present it for carriage on any other terms. In response to this the defendants say, that any such rule, regulation and notice of the carriers was illegal; that they are compellable to transport goods under their common law liability; that it was the duty of plaintiffs to insist...