Ill. Cent. R.R. Co. v. Cobb

• Decision Date: 30 June 1872
• Court: Illinois Supreme Court
• Parties: ILLINOIS CENTRAL RAILROAD COMPANYv.COBB, CHRISTY & CO.

64 Ill. 128

1872 WL 8278 (Ill.)

ILLINOIS CENTRAL RAILROAD COMPANY

v.COBB, CHRISTY & CO.

Supreme Court of Illinois.

June Term, 1872.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of McLean county; the Hon. THOMAS F. TIPTON, Judge, presiding.

The facts necessary to an understanding of the points decided, are stated in the opinion.

Messrs. HAY, GREENE & LITTLER, and Messrs. WILLIAMS & BURR, for the appellant.

Mr. HAMILTON SPENCER, and Messrs. WELDON & BENJAMIN, and Mr. T. D. LINCOLN, for the appellees.

Mr. CHIEF JUSTICE LAWRENCE delivered the opinion of the Court:

During the winter of 1864-5, Cobb, Christy & Co., appellees, were engaged in furnishing corn and oats at Cairo for the use of the army. They made large purchases of these articles through one Fallis, along the line of the Illinois Central Railroad. The shipments were made to Cobb, Blaisdell & Co., for account of Cobb, Christy & Co., the senior member of each firm being the same person. These firms had a contract with the government, made in the name of Cobb, on the 10th of January, 1865, for the delivery at Cairo of five hundred thousand bushels of corn and one hundred thousand of oats, at the rate of from 150,000 to 200,000 bushels of corn per month, at $1.55 per bushel, or $1.50 if paid on delivery. This is one of a series of suits brought by Cobb, Christy & Co. against the appellant as a common carrier, for failing to deliver at Cairo, in a reasonable time, large quantities of corn shipped on appellant's road. The appellees claim that, in consequence of such failure, they lost the opportunity of delivering the corn on their contract, and that they are now entitled to the contract price from the appellant as damages. They recovered on that basis in the circuit court, and the railway company has prosecuted an appeal.

It is first urged as a ground of reversal, that the plaintiffs did not own the corn which the company failed to deliver. It is insisted that, by the terms of the contract under which Fallis bought the grain along the line of the road, it was not to become the property of the plaintiffs until after it had passed inspection in Cairo. Conceding that, by the terms of the contract between the plaintiffs and Fallis, he was not their agent in such a sense as to give him the right to buy corn in their name and on their credit, and that they did not become the absolute owners until after the corn had passed inspection, still, under the facts disclosed in this case, they had an unquestionable right to bring this suit. By the arrangement between them and Fallis, he drew on them for the cost of the corn as soon as he shipped it, at the same time forwarding the bills of lading. These drafts they paid, and thus acquired a special property in the corn which would enable them to maintain this suit and recover, as their damages, the value of the corn in Cairo under their contract, if there were no other obstacles to their recovery than that raised upon the question of ownership. From the moment the corn was shipped, and the bills of lading were transmitted to them, and bills of exchange drawn upon them, they acquired, even as against Fallis, a special property in the corn which placed it beyond his control, and, indeed, gave them, virtually, all the rights of an owner. The question of inspection may be a very important one as between Fallis and the plaintiffs when they come to settle their accounts, but when the corn arrived in Cairo the plaintiffs had the right to waive inspection, or even to receive it after it had been rejected. The provision for inspection was inserted merely for their benefit, and to give them the right to avoid all responsibility until inspection had been passed. But they could assert their ownership without inspection if they thought proper, and assert such rights of action as are the incidents of ownership. It can not be doubted that a recovery in this action, on the basis upon which a recovery has been had, would bar any other action by Fallis, as he would occupy the same position that he would have held if the corn had passed inspection. 2 Redf. on Railways, 190; White v. Bascom, 28 Vt. 268; Green v. Clark, 13 Barb. 57; 2 Kernan, 343.

It is next urged, as a reason for reversal, that the government had taken military possession of appellant's road, and appellant had thus ceased to be a common carrier. This question was considered by this court in the case of this same appellant against McClellan, 54 Ill. 58. We have again given it a very deliberate consideration upon the evidence and arguments now before us, and we see no reason to change the opinions then expressed. As the question was then fully discussed, we do not deem it necessary to enter upon it at any length. The utmost that can be fairly said of the evidence is, that it shows the government required the appellant to give preference to government freights, and for that purpose exercised more or less the right of determining for what persons shipments should be made. But Arthur, the general superintendent, testifies that the government did not control the movement of trains, and had nothing whatever to do with that. The company still continued in the exercise of its functions as a common carrier, running regular trains wholly at its own discretion as to time and management, and carrying private as well as government freights, with and without government permits. It held itself out to the world as a common carrier and did the business of one, issuing bills of lading as in the present case, in the ordinary form, and without any reference in them to the supposed military control. In one respect, indeed, it may be fairly said that the interference of the government had suspended its functions as a common carrier. It is the duty of a common carrier to receive freight for all persons alike without discrimination. The road was so far under governmental control that the company could not be held liable for refusing freights when it would not be safe to undertake their carriage, or for discrimination in consequence of military orders; and on this principle we decided the Ashmead case, 58 Ill. 487. But when it thought proper to receive freight and issue its bills of lading therefor, it was acting as a common carrier, and can not escape the liability attaching to that function.

But in these cases we do not perceive that the question is specially important. So far as the time of delivery is concerned, a common carrier is only held to a reasonable time. In these cases, whether a common carrier or not, the appellant received this corn upon an undertaking, for a valuable consideration, to transport it to Cairo. Independently of the special obligations of common carriers, the law would imply, as one of the terms of this contract, that it was to be performed in a reasonable time.

It is next urged by appellant's counsel that there was no unreasonable delay, under the circumstances, in the transportation of this corn. On this point we may again cite the case of McClellan, in 54th Illinois, where this question was discussed upon a state of facts substantially the same as that presented by this record. The proof shows that the ordinary time required for freight cars to run from the places where this grain was shipped, to Cairo, is from two to three days. In the case before us, only ninety-five cars, of the one hundred and twenty-five in controversy, ever reached Cairo at all, their average time being over thirty days. The shortest time was six days, and only one went through in that time. As to those that did not go through at all, we infer, from the evidence, their contents were so badly damaged by the long delay upon the road that it was deemed useless to forward them, and the corn was sold at different places for whatever it would bring. The same excuses are alleged for this delay that were urged in the McClellan case, supra, and it is not necessary to repeat what was there said. Our confidence in the conclusions then announced, and in the reasons given for them, is not shaken. It appears the government would not permit the company to unload the cars that passed inspection, but insisted on doing this work itself, and unloaded an average of only about sixty per diem, as claimed by appellant. There was accommodation on the side-tracks at Cairo for only about three hundred or three hundred and fifty cars, and this was wholly occupied in March and April by cars of accepted and rejected corn, waiting to be unloaded. There was a good deal of delay in unloading the rejected corn consigned to Cobb, Blaisdell & Co., owing to the want of storage room in Cairo. A part of it was received by them, but on the 1st of April they gave notice to the agent of the company that they would receive no more rejected corn.

It is strenuously urged by counsel for appellant that the delay in transporting corn was owing to this blocking of the side-tracks at Cairo, and that this was due, in part, to the delay of the government in unloading accepted corn, and in part to the delay of Cobb, Blaisdell & Co. in receiving the rejected corn, and to their final refusal to receive it at all. It is urged that, for the government's delay, appellant was not responsible, and as to the delay in unloading the rejected corn, to which the company charges the greater part of the difficulty, it is claimed that this was the fault of the plaintiffs, and that its consequences are not to be visited upon the appellant.

It has been several times said by this court that it is the duty of consignees to receive freight when notified of its arrival at its destination, and if they fail to do so, it is the duty of the carrier to warehouse the goods and take reasonable care of them for a reasonable time. Porter v. C. & R. I. R. R. Co. 20 Ill. 407; C. & A. R. R. Co. v. Scott, 42 ib. 132; I. C. R. R. Co. v. Frankenberg, 54 ib. 94. This is the general rule. 2 Red. on R. 65; Angell on Carriers, sec. 291. Conceding that plaintiffs, or their...