Hutchings v. Ladd

• Decision Date: 21 April 1868
• Citation: 16 Mich. 493
• Court: Michigan Supreme Court
• Parties: John Hutchings v. Edward W. Ladd et al

16 Mich. 493

John Hutchings v. Edward W. Ladd et al

Supreme Court of Michigan

April 21, 1868

Heard April 15, 1868 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Wayne circuit.

This was an action to recover alleged damages against plaintiff in error, who undertook to forward goods to Saginaw City, but failed to send certain instructions of plaintiffs concerning the collection of money due upon said goods.

The declaration contained a single count which alleged that, November 2d, 1865, defendant was a forwarder, engaged in the business of forwarding goods from the city of Detroit to Saginaw City, Michigan, and that on that day plaintiffs delivered to defendant certain goods to be by him forwarded to Saginaw City to the American Express Company, to be by said express company delivered to Joseph Martin, on their receiving from said Martin $ 64.76, and that the defendant undertook to forward said goods as agreed, and to send with said goods to said express company instructions directing them to deliver said goods to one Joseph Martin on receiving from him the said sum of $ 64.76, which, it is alleged, was due to plaintiffs from said Martin as part of the purchase price of said goods, and which constituted a lien thereon.

The plea was the general issue.

The justice gave judgment in favor of defendant, and plaintiffs appealed. The trial in the circuit court was by a jury, and resulted in a verdict and judgment for plaintiffs for the full amount claimed. On the trial, exceptions were taken by the defendant to certain rulings of the court excluding evidence offered by defendant, and to instructions given to the jury, and the case comes up for review as to the correctness of such rulings and instructions.

The following are the assignments of error:

1. In the sustaining of the objection of the defendants in error to the evidence offered by the plaintiff in error tending to prove:

"That it was not usual or customary for common carriers at Detroit to receive goods for carriage, and give bills of lading therefor, with instructions to the consignee inserted therein, similar to the instructions which it is alleged in plaintiffs' declaration the defendant undertook to send with the goods in question."

2. In the sustaining of the objection of the defendants in error to the evidence offered by the plaintiff in error tending to prove:

"That it was not usual or customary for forwarders in the city of Detroit to receive goods to be forwarded, and undertake to accompany them with instructions similar to the instructions which it is alleged in plaintiffs' declaration the defendant undertook to send with the goods in question."

3. In the sustaining the objection of defendants in error to the evidence offered by the plaintiff in error tending to prove:

"That it was not usual or customary for said defendant to receive goods to be forwarded and undertake to accompany them with instructions similar to the instructions which it is alleged in plaintiffs' declaration he undertook to send with the goods in question."

4. In the sustaining of the objection of defendants in error to the evidence offered by the plaintiff in error tending to prove:

"That defendant had, prior to the reception of the goods in question, instructed his clerks not to receive goods to be forwarded and undertake to accompany them with instructions similar to the instructions which it is alleged by plaintiffs' declaration the defendant undertook to send with the goods in question."

5. In the giving of the following instructions by the court to the jury, to wit:

"That there was evidence fairly tending to show the making of the agreement by defendant counted upon in said plaintiffs' declaration, and that it was for them to say from such evidence whether or not said agreement was in fact made."

6. In the giving of the following instructions by the court to the jury, to wit:

"That there was evidence tending to show that by the breach of such agreement on the part of said defendant the plaintiffs had suffered damage to the amount of the sum which was to be collected from said Martin upon delivery to him of said goods, to wit, $ 64.76, and that if they should find such agreement to have been made, and that it had been so broken, and plaintiffs had by reason thereof suffered such damage, their verdict might be for the said plaintiffs for said sum of $ 64.76 and interest."

Judgment affirmed.

Newberry & Pond, for plaintiff in error:

1. The evidence, the exclusion of which is the basis of the first, second and third assignments of error, was clearly admissible.

It had appeared by plaintiff's evidence that the alleged contract, if made, was made on behalf of defendants by a clerk employed in his warehouse, and hence the question of the authority of said clerk to make such contract was a material one, and the only evidence as to his authority, given by the plaintiff, consisted in the fact that he was such clerk, and as such, charged with the duty of receiving goods to be forwarded, and to give receipts therefor, and hence, prima facie, his authority, implied by law from the nature of his employment, was to make such contracts in relation to the forwarding of goods, and only such contracts as it was usual and customary for forwarding merchants at Detroit to make: 11 Cush. 586.

The evidence offered was therefore admissible to show that the contract alleged to have been made by the clerk was beyond his authority, as implied from the nature of his employment, to make.

2. The evidence referred to by the fourth assignment of error was, perhaps, unnecessary; but if, as we have contended above, there was no implied authority in defendant's clerk, from the nature of his employment, to make the contract in question, it was clearly admissible to negative any claim or pretense of express authority.

3. There are two errors involved in the instruction complained of by the fifth assignment of errors, to wit:

First. In its assertion that there was evidence tending to show the agreement counted upon.

Second. In submitting it to the jury to say whether or not such agreement was in fact made.

There was no evidence tending to show that the contract counted upon was made.

The only evidence of any agreement was the receipt signed by Hutchings & Co., and the paper left by Ladd & Co. with Hutchings & Co.'s clerk at the time of the delivery of the goods.

And we submit that these papers do not tend to prove the agreement counted upon.

The agreement which they show to have been made by Hutchings & Co. is either,

1. To transport the goods to Saginaw, and, upon delivery there to the consignee, to collect their (Hutchings & Co.'s charges, $ 64.76.

2. To transport the goods to Saginaw, and deliver them to the American Express Company for delivery to Martin, the ultimate consignee, upon the payment of their (Hutchings & Co.'s) charges, $ 64.76.

By no recognized canon of construction can the agreement counted upon be worked out of these papers.

3. The error of the charge upon which is predicated the sixth assignment of error lies in the assumption that the failure of Hutchings to send with the goods the instructions to the express company to deliver them to Martin upon payment of the $ 64.76, caused their delivery by the carrier directly to Martin without collecting the sum.

Viewed legally, there can be seen no connection by way of cause and effect between the two things.

The instructions were designed not for the carrier to enable him to determine to whom to deliver the goods, but for the express company to guide them in their action after the goods had come to their possession.

And Hutchings, consistently with the agreement as counted upon and with the evidence as to it, might have sent the instructions to the express company along with the goods in a sealed envelope.

As the goods were consigned to the express company, the carrier was as much bound to deliver them to such company without knowing of the instructions, as he would have been had he known of them.

The loss of the $ 64.76, therefore, happened from the misdelivery of the goods by the carrier and not from the failure of Hutchings & Co. to send the instructions to the express company, and plaintiff at the most was entitled but to nominal damages.

Walker & Kent and G. V. N. Lothrop, for defendants in error:

1. The reception of goods by a forwarder, accompanied with instructions as to the manner of forwarding them, without objection, and the actual forwarding of the goods, not only tend to show, but conclusively show, a contract to forward in accordance with the instructions.

2. The contract in question was made by the agent of the defendant below, and it will not be contended, as we think, that the evidence ruled out could have been admissible for any other purpose save to show a want of authority in the agent.

It is absurd to say that a man who makes a contract can avoid it by showing that the contract is a very unusual one, either with himself or anybody else.

In the case at bar, the stone was received and receipted for by the clerk whose business it was to attend to such matters. It does not appear by whom they were forwarded, but it must be presumed to have been done by defendant's agent for this purpose, if not by himself.

Now defendant's agents must be presumed to have had authority to make any contract which was fairly within the scope of a forwarder's business. The putting in the bill of lading a direction to the consignee that there are certain charges to be paid before the property is delivered, is so simple a thing that we think an agent of a forwarder would be presumed to have the...