Illinois Central Railroad Company v. Swanson

• Decision Date: 13 April 1908
• Citation: 46 So. 83,92 Miss. 485
• Court: Mississippi Supreme Court
• Parties: ILLINOIS CENTRAL RAILROAD COMPANY v. ANN SWANSON

46 So. 83

92 Miss. 485

ILLINOIS CENTRAL RAILROAD COMPANY v. ANN SWANSON

Supreme Court of Mississippi

April 13, 1908

March 1908

FROM the circuit court of Madison county, HON. DAVID M. MILLER Judge.

Mrs Swanson, appellee, was plaintiff in the court below, and the railroad company was defendant there. From a judgment in plaintiff's favor the defendant appealed to the supreme court.

The appellee shipped a car load of hay from Way, Miss. to New Orleans, La. The defendant's agent gave appellee the bill of lading, in the usual form, except that it had written in the corner: "Shipper's order, notify R. W. Barrett New Orleans, Louisiana. Ship to Levee and Washington streets." The hay reached New Orleans in due time in good condition, and was switched on one of the side tracks of the appellant known as the "Valley Yard," and Barrett, the consignee, notified that the hay was there. Barrett refused to call for the hay, claiming that he had contracted to have it delivered at Levee and Washington streets, and unless it was delivered there he would not take it. To this appellants replied that they had no depot, nor switch nor facilities for handling the hay at Levee and Washington streets. The hay remained at the Valley yard for a long time and was not claimed by the consignee. It was afterwards sold, and the proceeds applied to the payment of freight and storage. Afterwards appellee brought suit against appellant for damages, alleging in the declaration that appellant had contracted with her to deliver the hay to her at Levee and Washington streets, and that appellant had failed to perform its contract, and that as a result of this breach the consignee had refused to purchase the hay, whereby appellee was damaged. The appellant denied the contract, and offered evidence to show that at the time the appellee requested the agent at Way, Miss. to consign the hay to Levee and Washington streets, the agent told appellee it had no switch, nor depot, nor yards at that point, nor had he any authority to make a contract to deliver the goods at that point. Appellee, however, persuaded the agent to write in the bill of lading what is claimed to be a contract to transport the goods to the point mentioned.

Judgment reversed and cause remanded.

Mayes & Longstreet, for appellant.

The defendant, the appellant, at the trial, shows by overwhelming evidence that it had neither station house nor switch of any description, at Washington and Levee streets; also, that its regular place in New Orleans for the delivery of hay was at its Poydras street depot, and that the defendant offered to make delivery to the consignee there, but that he, the consignee, refused to take the hay.

That these are the real facts of the case was so conclusively established by testimony adduced at the trial, as to convince any man; but in spite of this, the jury brought a verdict for the plaintiff showing, by so doing, that they had totally disregarded the court's instructions.

A contract to transport goods to a certain point on a railroad company's road other than a regular station, made by a local freight agent, not having authority to make such contract, is no more binding upon the railroad company than would be a contract to receive goods at a point upon the company's road other than a regular station made by such an agent not having authority to make such a contract, and that would not be binding at all. 6 Cyc., 431, n. 77.

There is still another reason why the judgment of the court below should be reversed. It is this: It is a well settled rule that a contract made for carrier by an agent not having authority to make such a contract, will not bind the carrier if at the time of the making of the contract the shipper knew that the agent had no authority to make the contract. 6 Cyc. 431, par. 5.

In the case at, bar Swanson applied to the agent of the Illinois Central Railroad Company to make a contract for the transportation of certain goods from Way, Mississippi, to New Orleans, Louisiana. In addition to that, Swanson asked the agent to accept the goods for transportation to a certain point in New Orleans other than a regular station upon the company's road. The agent thereupon informed Swanson that he had no authority to make a contract for the railroad to transport goods to this certain point in New Orleans. The agent was persuaded, however, to write, or rather he did write into the bill of lading what the appellee claims was a contract to transport said goods to said certain point above mentioned. Is the railroad company bound by that contract? No, indeed! This shipper deliberately chose to rely upon a contract made with an agent whom he knew had no authority to make it and he was damaged. He sued the railroad and because a jury were either biased or ignorant, he succeeded in getting a verdict against the railroad company.

These being the facts, surely this court will not permit him to recover damages from the railroad company.

Pratt & Reid, for appellee.

The sole ground of action in this case is the failure of the railroad to deliver a carload of hay at the point alleged to have been agreed upon in the bill of lading.

It is claimed by the plaintiff that the point of delivery was Levee and Washington streets. It is denied by the defendant that it agreed to deliver at that point.

The first question is, what was the contract as shown by the evidence in the case. The bill of lading is the best evidence and parol evidence is not admissible to vary or contradict its terms.

It is claimed by the defendant that the endorsement on the bill of lading "To be switched to Levee and Washington St.," was no part of the contract.

Now the rule of construction of a bill of lading is: "The intention of the parties is to be gathered from the instrument as a whole; in case of doubt the bill of lading must be construed strictly against the carried. Written matter prevails over printed matter, and a memorandum on the margin is as valid as if written in the body of the bill."

The above is quoted verbatim from 4 Elliot on Carriers, sec. 1424, and authorities referred to to sustain the text.

If we rely on the terms of the bill itself it is clear that adopting the above rules of construction, the contract was to deliver at Levee and Washingon streets.

The defendant introduced parol evidence to show that the endorsement was simply intended as the address of the consignee Barrett; and also testimony tending to show that said endorsement was obtained by fraud.

Now parol testimony is not admissible to contradict the terms of this or any other written contract.

Says Elliott on Carriers, Vol. 4, p. 2199, sec. 1415: "A bill of lading as a receipt may be explained or contradicted, but as a contract it must be construed according to its terms."

In construing bills of lading the courts usually treat that portion of the bill which acknowledges the delivery and acceptance of the goods as a receipt, and the rest as a contract. Transportation Co. v. Furtherman, 41 Am. St. Rep., 265; Van Etten v. Newton, 30 Am. St. Rep., 630 and note; Davis v. Railroad Co., 44 Am. St. Rep., 852; Manufacturing Co. v. Railway Co., 61 Am. St. Rep., 679.

It is well settled that evidence cannot be introduced to vary the carrying part of a bill of lading in the absence of mistake or fraud. Manufacturing Co. v. Western Ry. Co., 67 Am. St. Rep., 179, McElveen v. Southern Railway Co., 77 Am. St. Rep., 371 and cases cited above.

"The bill of lading is not variable by parol; all negotiations are...