Grover & Baker Sewing Mach. Co. v. Missouri Pacific Ry. Co.

• Decision Date: 31 October 1879
• Citation: 70 Mo. 672
• Parties: GROVER & BAKER SEWING MACHINE COMPANY v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

70 Mo. 672

GROVER & BAKER SEWING MACHINE COMPANY

v.MISSOURI PACIFIC RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1879.

Appeal from Jackson Special Law and Equity Court.--HON R. E. COWAN, Judge.

REVERSED.

Thos. J. Portis and E. A. Andrews for appellant.

1. No authority in Lee is shown to make the contract. Wharton on Agency, §§ 127, 129, 137, 459; Farnsworth v. Brunquest, 36 Wis. 202; Pole v. Leask, 33 L. J. Eq. 155; Burroughs v. R. R., 100 Mass. 26; Wait v. R. R., 5 Lansing (N. Y.) 475; Dean v. King, 22 Ohio St. 118. 2. A railroad company cannot be required, as a common carrier, to deliver goods at a point beyond or off its own line of road. People v. R. R. Co., 55 Ill. 95; Cobb v. R. R. Co., 38 Iowa 601.

Bryant & Holmes for respondent.

1. Railroad corporations have power implied in their general corporate powers to contract as common carriers for the transportation of goods beyond their own lines. R. R. Co. v. Pratt, 22 Wall. 123; Muschamp v. R. R. Co., 8 M. & W. 421; Weed v. R. R. Co., 19 Wend. 534; McCluer v. R. R. Co., 13 Gray 124; Nashua Lock Co. v. R. R. Co., 48 N. H. 339; Burtis v. R. R. Co., 24 N. Y. 269. The authorities are in conflict as to whether a contract to carry beyond the company's line may, under certain circumstances, be implied. But in this case there is an express contract. 2. The authority of Lee was general and not special in respect to receiving and contracting for freight to be transported by defendant's road. He had general authority to act as defendant's freight agent at Kansas City The execution of the contract sued on by him, therefore, was an exercise of defendant's ordinary corporate powers, and an act which was usual in the line of business in which he was employed, and that authority could not be limited by defendant's rules and regulations not permitting him to make such contracts without special permission, because they were simply private orders or directions not known to the plaintiff. Wharton on Agency, § 121.

HENRY, J.

This was an action in the Jackson special law and equity court to recover of defendant damages for the loss of a sewing machine shipped over its road from Kansas City to Osceola, Mo., to one James N. Thompson. The answer alleged that Osceola is not on the line of defendant's road, and that defendant made no contract to transport the sewing machine to that point. There was a judgment for plaintiff from which defendant has appealed.

The evidence shows that defendant was operating a road from Kansas City to St. Louis, which, at Sedalia, Mo., connects with the Missouri, Kansas & Texas Railroad running south from that point, beyond the town of Clinton, which is a station on said road and the shipping point for Osceola, twenty-seven miles distant from Clinton, and neither the defendant nor the Missouri, Kansas & Texas Railroad was shown to be a common carrier between Clinton and Osceola, nor was there any railroad between those two points, nor was it shown that there was any common carrier between those points. It was agreed that Joseph M. Lee would testify, if present, that he was, at the time of the execution of the receipt given for said machine, defendant's freight agent at Kansas City, and had general authority to act as defendant's freight agent at Kansas City, but that the rules of the company did not permit him to enter into any contract for transportation of freight beyond the terminus of defendant's line of railroad without special permission from defendant's general freight agent at St. Louis. It was expressly agreed that said Lee was the freight agent of defendant at Kansas City, and by his duly authorized clerk, Leonard, executed and delivered to plaintiff the following receipt:

KANSAS CITY, Mo., March 7th, 1872.

Received of Grover & Baker Sewing Machine Company, in good order, by Missouri Pacific Railroad Company, to be delivered in like good order unto James M. Thompson, Osceola, Missouri.

Marks.

Articles.

Weight.

J. M. Thompson, Osceola, Mo.

box and frame containing one sewing machine.

100 lbs.

(Signed,)

J. M. LEE, Agent, L.

The box and crate containing the machine reached the town of Clinton, and there the crate containing the machine-frame and a certain box were delivered to Jacob Blinckenhoff, to be delivered to said Thompson at Osceola. Upon the delivery of said box to said Thompson, it proved to be a box containing leather and shoe-findings, shipped to him from St. Louis, and the machinery of said sewing machine was never delivered to said Thompson or to plaintiff. The receipt sued on was furnished, filled out and presented to said clerk of Lee, by plaintiff for signature. It was not shown that plaintiff had ever before shipped over said road sewing machines, or other goods to be delivered at Osceola, or that defendant had ever held itself out as a carrier of goods to that point. On this state of facts, was plaintiff entitled to recover?

1. RAILROAD: contract to carry beyond terminus

That a railroad may, by contract, subject itself to the obligation of a common carrier beyond its own line, is well settled by the weight of authority, but as was said in R. R. v. Pratt, 22 Wall. 124, the result of American authorities limits the carrier's liability as such to his own line, when no special contract is made. In Perkins v. P. S. & P. R. R. Co., 47 Me. 593, it was held that “a railroad may be bound by special contract, but not otherwise, to transport persons or property beyond the line of its own road.” This remark was criticised in Lock Co. v. Railroad, 48 N. H. 355, in which we think it was shown “that the term ‘express contract’ could hardly have been used in its strict sense, to signify a contract in the form of a direct promise or undertaking, in language, oral or written, proper to show a positive agreement, since the judge who delivered the opinion of the court speaks of a case where the carriers would be liable on the ground that they held themselves out as common carries to that place; in which case, (remarks the judge in the New Hampshire case,) as I understand it, the contract would not be express in the strict or usual sense of the term, but implied from the conduct of the party.” Taking the criticism as just, the doctrine may be stated, that a railroad company may be bound by contract, express or implied, but not otherwise, to transport persons or property beyond the line of its own road. As thus declared, it is fully sustained by the authorities, both in the United States and England.

2. ____: power of freight agent to contract.

The vital question, therefore, in the case is, whether the defendant's freight agent at Kansas City had authority to make the contract sued on, and in this case, that is to be determined by ascertaining whether or not the power to make the contract was within the general scope of the agent's apparent authority. If it was, then although the regulations of the company forbade him from making such a contract, unless plaintiff was aware of such regulations, the company is bound. Here the agent was forbidden to make such contracts, but there is no evidence tending to show that plaintiff was informed of such regulations. The whole question then depends upon the character of Lee's agency, whether it was general or special.

There is a marked distinction between special and general agents, with respect to the authority to bind the principal. The principal is bound by the act of the general agent though such acts are in violation of the agent's...