Ill. Cent. R.R. Co. v. Schwartz

• Decision Date: 31 May 1882
• Citation: 11 Bradw. 482,11 Ill.App. 482
• Parties: ILLINOIS CENTRAL RAILROAD COMPANYv.GEORGE W. SCHWARTZ, use, etc.
• Court: United States Appellate Court of Illinois

11 Ill.App. 482

11 Bradw. 482

ILLINOIS CENTRAL RAILROAD COMPANY

v.GEORGE W. SCHWARTZ, use, etc.

Appellate Court of Illinois, Third District.

May Term, 1882.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of McLean county; the Hon. OWEN T. REEVES, Judge, presiding. Opinion filed October 24, 1882.

Messrs. WILLIAMS, BURR & CAPEN, for appellant; that if a party has an interest in the result of a suit, and consents that it may be brought in the name of another, he is a privy and bound by the judgment, and such judgment will be a bar to a new suit, cited Conger v. Chilcote, 42 Iowa, 18; Stoddard v. Thompson, 31 Iowa, 80; McNamee v. Moreland, 26 Iowa, 97; Finn v. Western R. R. Co. 112 Mass. 524; Ill. Cent. R. R. Co. v. Cobb, 64 Ill. 132; Green v. Clark, 12 N. Y. 343; Calkins v. Allerton, 3 Barb. 171; State v. Hunter, 3 Strob. Eq. 136; Kent. v. H. R. R. Co. 22 Barb. 278; White v. Bascom, 28 Vt. 268; Kitchen v. Campbell, 3 Wils. 304; Cron v. Bowlby, 68 Ill. 23; Miller v. L. M. T. Co. 14 Chicago Legal News, 18; Bigelow on Estoppel, 77; 2 Smith's Lead. Cas. 435.

If there be delay in transportation of goods, the owner, to recover damages, must show what was done with the goods after their arrival, expenses, etc.: Ill. Cent. R. R. Co. v. Cobb, 72 Ill. 148.

The party first violating a contract, and thus causing the other to violate it, can not recover for damages caused by his own fault: Conger v. H. R. R. R. Co. 6 Duer, 375; Cobb v. Ill. Cent. R. R. Co. 88 Ill. 394.

No man can take advantage of his own wrong: Broom's Legal Maxims, 209; Wright v. I. & M. Tel. Co. 20 Iowa, 195.

If a carrier is compelled by law to give preference to any one he is released from his obligations as a common carrier: Angell on Carriers, § 68; Story on Bailments, § 495; Dwight v. Brewster, 1 Pick. 50; Bouvier's Law Dic. “Common Carrier”; 2 Redfield on Railways, 3; Hutchinson on Carriers, § 47.

A common carrier is one bound to carry for all who offer freight, and pay charges: 2 Redfield on Railways, 67; Hutchinson on Carriers, § 48.

A common carrier is only bound to provide reasonable facilities for doing the ordinary business required: G. & C. U. R. R. Co. v. Rae, 18 Ill. 488; Wibert v. N. Y. & C. R. R. Co. 2 Kernan, 245; 2 Redfield on Railways, 163; Story on Bailments, § 591; Hutchinson on Carriers, § 114; Conger v. H. R. R. R. Co. 6 Duer, 375.

If the State, as the law-making power, takes control of the carrier, and compels him to act under its direction, he ceases to be a free agent: Bliven v. H. R. R. R. Co. 35 Barb. 188; Hadley v. Clark, 8 T. R. 259; Angell on Carriers, § 293.

At the time of the grievance complained of appellant was not a common carrier: Ill. Cent. R. R. Co. v. Ashmen, 58 Ill. 487; Ill. Cent. R. R. Co. v. McClellan, 54 Ill. 58; Ill. Cent. R. R. Co. v. Cobb, 64 Ill. 128; Ill. Cent. R. R. Co. v. Blaisdell, 72 Ill. 148; Ill. Cent. R. R. Co. v. Hamberger, 77 Ill. 457; Cobb v. Ill. Cent. R. R. Co. 88 Ill. 394; Phelps v. Ill. Cent. R. R. Co. 94 Ill. 548; Ill. Cent. R. R. Co. v. Phelps, 4 Bradwell, 238.

The Illinois Central Railroad is a military highway under the control of the government of the United States: U. S. Stat. 466, § 19; 2 Purple's Stat. 1362; 2 Redfield on Railways, 653; 12 U. S. Stat. at large, 334.

The measure of damages is compensation: Warner v. Ostrander, 44 Ill. 356; King v. Gilson, 32 Ill. 348; Bridgeman v. Steamboat Emily, 18 Iowa, 509; Mather v. Butler Co. 28 Iowa, 252; Winne v. I. C. R. R. Co. 31 Iowa, 583; Gilbert v. Wiman, 1 Comst. 550; Aberdeen v. Blackmar, 6 Hill, 324; Loker v. Damon, 17 Pick. 280; Miller v. Mariner's Church, 7 Greenl. 51; Hutchinson on Carriers, § 773; Angell on Carriers, § 490; Sedgwick on Damages, 28; Pierce's Railroad Law, 465.

It is the duty of the consignee to receive the goods from the carrier promptly: 1 Redfield on Railways, 52; Angell on Carriers, § 502; Porter v. C. & I. R. R. Co. 20 Ill. 407; C. & A. R. R. Co. v. Scott, 42 Ill. 132; Crawford v. Clark, 15 Ill. 561; Ostrander v. Brown, 15 Johns. 39; Hemphill v. Chenie, 6 W. & S. 62; G. W. Ry. Co. v. Crouch, 3 H. & N. 182; Thomas v. B. & P. Ry. Co. 10 Met. 472.

In the absence of any stipulated time for the performance of a contract, it must be performed within a reasonable time: Wibert v. N. Y. & E. R. R. Co. 12 N. Y. 245; G. & C. U. R. R. Co. v. Rae, 18 Ill. 488.

The judgment of a court of competent jurisdiction is final as to all matters actually determined, and as to all such as might have been litigated in the cause: Le Guen v. Gouverneur, 1 Johns. Cas. 436; Moses v. Macferlan, 2 Burr. 1005; Phillip v. Hunter, 2 H. Bl. 402; Marsh v. Pier, 4 Rawle, 273; C. & S. R. R. Co. v. Watson, 26 Ind. 50; Smith v. Finley, 2 Penn. 1005; Calhoun v. Dunning, 4 Dall. 120; Peterson v. Lathrop, 34 Pa. St. 223; Chambers v. Lapsley, 7 Barr, 24.

Messrs. WELDON & BENJAMIN, and Mr. HAMILTON SPENCER, for appellee; that this suit is not barred by the former suit in the name of another party, cited Case v. Reeves, 14 Johns. 81 Hunt v. Haven, 52 N. H. 170; Crawford v. Hall, 16 N. Y. 575; Comyn's Dig. Evidence A, 5; Doe v. Earl of Derby, 1 Adol. & E. 783; Kirkpatrick v. Stringley, 2 Ind. 259; I. & C. R. R. Co. v. Clark, 21 Ind. 150; Hunter v. Davis, 19 Ga. 413; Church v. Claflin, 35 Vt. 223; Packet Co. v. Sickles, 5 Wall. 580; Russell v. Place, 4 Otto, 606; Chrisman v. Harman, 29 Gratt. 494; Akin v. Peck, 22 Vt. 260; Hooker v. Hubbard, 102 Mass. 245; Supples v. Cannon, 44 Conn. 428; Dutton v. Woodman, 9 Cush. 261.

Upon the question of military interference: Ill. Cent. R. R. Co. v. McClellan, 54 Ill. 58.

The carrier having received the goods is responsible for delay in delivering them: Ill. Cent. R. R. Co. v. McClellan, 54 Ill. 58; Ill. Cent. R. R. Co. v. Cobb, 64 Ill. 128; Bowman v. Teal, 23 Wend. 306.

MCCULLOCH, J.

The transactions out of which this suit grew are in part detailed in the opinion of the Supreme Court in Ill. Cent. R. R. Co. v. Cobb, Christy & Co. 64 Ill. 128. It is said that the corn sued for in this case was also embraced in that. It is further contended that after being remanded to the circuit court the case was again tried and judgment rendered for the railroad company, which judgment was affirmed by the Supreme Court. Cobb, Christy & Co. v. Ill. Cent. R. R. Co. 88 Ill. 394, and that appellee being interested in and privy to that suit, is barred of his action in this.

It will be observed that, in their first opinion (64 Ill. 128) the Supreme Court, in view of the terms of the contract between Cobb, Christy & Co. and Fallis, who claims to have purchased the corn for them, regarded Cobb, Christy & Co. as sufficiently interested in the corn to maintain a suit in their own names for its detention.

When the case again came before that court (88 Ill. 396), it appearing then that Cobb, Christy & Co. had not advanced money specially upon the corn in question, but had cashed the drafts of Fallis upon his general account, it was held the action could not be maintained.

That was an action on the case for negligence. This is a suit in assumpsit upon two bills of lading, as they are called, in favor of appellee, one for five cars of corn shipped from Wenona, from March 30 to April 10, 1865, to Cobb, Blaisdell & Co., on account of E. Fallis, the other for one car of corn shipped from Minonk, March 30, 1865, to Cobb, Blaisdell & Co. to the like account of E. Fallis, the damages sued for having, as is claimed, resulted from unreasonable delay in transporting the grain to Cairo.

It now appears that Schwartz made an absolute sale of the corn to E. Fallis, either on his own account, or as the agent of Cobb, Christy & Co., the corn to be delivered on board appellant's cars by April 10, 1865, and to be paid for on delivery or soon thereafter. There was nothing in this contract making it a condition of the sale that the corn should pass inspection at Cairo, as was the case in the arrangement between Fallis and Cobb, Christy & Co. In pursuance of the terms of this contract of sale, Schwartz delivered the corn in question on board appellant's cars and took the bills of lading sued on, which he turned over to Fallis and thereby parted with all control over the grain. It is now claimed by counsel for appellant that appellee, having parted with his title, can not maintain this suit. It must be confessed, the case is not free from difficulty upon this point. It is held in G. W. R. R. Co. v. McComas, 33 Ill. 185, that the carrier can not dispute the title of the consignor, and such appears to be the weight of authority. Hutchinson on Carriers, § 723 et seq. This is undoubtedly the law where the party delivering the property to the carrier is in duty bound by contract or otherwise to make the shipment, or has become responsible to the carrier for his charges; but it is not altogether clear that when, as in this case, the seller delivers the grain on board the cars in pursuance of his contract of sale, and all the shipping arrangements are made by the purchaser, and the bills of lading specify that the grain is shipped to the consignee on account of the purchaser, the latter is not to be regarded as the consignor, and the seller only his agent.

This question, as well as that relating to the bar alleged to have been created by the former suit, will ultimately have to be decided before appellee's right to recover in this suit can be fully determined. It is said this suit is to be followed by about twenty others which involve the same question. It may, therefore, with reasonable certainty, be predicted that some one or more of them will be carried to the Supreme Court for final adjudication upon the questions of law involved. It is of vital...