Melton v. the N. C. R.R. Co..

• Decision Date: 31 January 1873
• Citation: 68 N.C. 107
• Court: North Carolina Supreme Court
• Parties: SMITH & MELTON v. THE N. C. RAILROAD COMPANY.

68 N.C. 107

SMITH & MELTON

v.THE N. C. RAILROAD COMPANY.

Supreme Court of North Carolina.

January Term, 1873.

The contents of a writing, which if it ever existed, has been lost or destroyed, and which cannot be found after diligent search, may be proved by parol.

What an agent says in the course of doing an act in the scope of his agency, characterizing or qualifying the act is admissible as part of the res gestæ. But if his right to act in the particular matter in question has ceased, his declarations are mere heresay, which do not affect the principal.

The power to make declarations or admissions in behalf of a company as to events or defaults that have occurred and are past, cannot be inferred as incidental to the duties of ageneral agent to superintend the current dealings and business of the company.

To establish the weight of 19 bales of cotton burned on defendant's Railroad, it is competent for a witness to state the average weight of the lot of 33 bales, of which the burned bales were a portion, and thus fix the weight of the 19 bales by approximation.

There is an exception to the general rule against heresay evidence, by which a matter of general interest to a considerable class of the public, may be proved by reputation among that class: Therefore, It is competent for a witness to state the price of cotton, from information received through commercial circulars, prices current and correspondence and telegrams from his factor.

The by-laws of a corporation are not evidence for it against strangers who deal with it, unless brought home to their knowledge and assented to by them.

( Williams v. Williamson, 6 Ired. 281; Howard v. Stutts, 6 Jones, 372; State Bank v. Wilson, 1 Dev. 485; Morgan v. Purnell, 4 Hawks, 95; Moffit v. Witherspoon, 10 Ired. 185, State v. Cochrane, 2 Dev. 63; Toole v. Peterson, 9 Ired. 180, cited and approved.)

CIVIL ACTION, tried before Moore, J., at the July (Special) Term, 1871, of the Superior Court of MECKLENBURG county.

The plaintiffs sued the defendants, before the change in our system of pleadings, in CASE, declaring against the Company as a common carrier for an overcharge of freight, and for the non-delivery of nineteen bales of cotton which were put upon the defendant's road.

In support of the declaration, one of the plaintiffs, G. W. Melton, testified, that about May 22, 1866, he shipped a lot of cotton belonging to the firm, (the plaintiffs,) from Chester, S. C., consigned to Hopkins, Dwight & Trowbridge, in New York City. At this point, the witness was asked by defendants, if he had not taken a shipping receipt for the cotton; he stated that he did not know whether he had or not, but that if he had, such receipt had heen lost or destroyed, as he had made diligent search and could not find it. The defendants objected to his speaking of the shipment of the cotton without producing it. His Honor overruled the objection, and the witness stated that he shipped 33 bales, of which the cotton in controversy was a part, from Chester, S. C., by way of Charlotte over the defendants' road. Defendants excepted.

It was in evidence, that at the time of the plaintiff's contract with Ghio, hereinafter alluded to, one Wilkes was superintendent of the defendants' road; that he continued as such during the year 1866, and that he is still alive. It was further in evidence, that during the whole of that time, he, Wilkes, had authority from the President and Directors of the road, to arrange and alter the tariff of freights and generally to make all other contracts with shippers over the road, but it was not shown that such authority was in writing. It was proposed to prove by the said Melton, the declarations of Wilkes made to him with reference to the loss of the cotton, while superintendent in 1866. This evidence was objected to by the defendants, but admitted by the Court. The plaintiff, Melton, thereupon testified, that Wilkes declared to him, that the ““Inland Air Line,” being a combination of Railways (of which the defendants' was one) and Steamships, from Chester, S. C., to New York, had been established before the 22d day of May, 1866; that after the cotton was burned, but during the year 1866, Wilkes further stated to him, that the cotton had been received by the defendants, and was burned at Harrisburg station on their road; that he informed Wilkes of the terms of the contract with Ghio, that Wilkes said that Ghio had authority to make the contract, but refused to pay on account of fire release, remarking however, he was bound by the terms of any contract which he had made with Ghio.

This witness also testified, that he weighed all the cotton himself; that he could not give the exact weight of each bale; that the bales varied but little in weight from each other; that he could tell the average weight by calculation, and knew the aggregate of the whole lot shipped, a part only of which was burned, viz.: nineteen bales. The Court allowed the witness to state the average weight by calculation, and the defendants excepted.

The witness being asked to state the price of cotton in New York at the time this shipment would have arrived there, stated, that he knew the price there at that time only by accounts of sale rendered him by his commission merchants on which he drew the money to his credit; by his telegrams, circulars and correspondence. This was objected to by defendants, but admitted by the Court. Defendents excepted.

It was admitted, that if the plaintiffs were entitled to recover, the measure of damages was the net value of the cotton in New York City at the time when the cotton would have reached there, if it had been carried according to the contract; and the net value was ascertained by proving the price in the manner above mentioned, and deducting expenses.

The witness further testified, that about the 22d May, 1866, one Ghio went to Chester, S. C., where plaintiffs lived, and represented himself as agent of the “Inland Air-Line,” and made a contract with plaintiffs for the shipment of cotton to New York over defendants' road and other roads constituting said “Inland Air-Line.” That this contract was for shipment of cotton through to New York for $4.50 per bale until other rates were established, no fire release to be required; that this shipment of cotton (the nineteen bales in controversy) was made under said contract, and that no fire release was afterwards required and the charge made was $4.50; and that this contract was in like manner carried out by the defendants' road and others composing the ““Inland Air-Line” in other shipments of cotton made by plaintiffs afterwards, on the 25th and 31st of May, 1866, and all other future shipments. To all which evidence the defendants objected. It was admitted by the Court, and the defendants excepted.

The evidence given on the trial relative to an open policy of insurance against fire, held by plaintiffs at the time the cotton was burned, need not be stated, as the point raised on its admission was abandoned in this Court.

One Scott, a witness for defendants, stated, that he was local agent at Charlotte, N. C., in 1866, for the N. C. Railroad Company; that one Pegram was agent on the road from Chester, S. C., to Charlotte, N. C.; that Pegram turned over to him all freight on his road going on the N. C. road; that the tariff of freights from Charlotte to Raleigh was $1.75 with fire release, $3.50 without fire release. He further stated, that he did not have authority to give original receipts for goods at Charlotte beyond Raleigh; that he shipped the cotton in controversy to Raleigh with fire release for $1.75; that there was an understanding with Pegram, that he was to sign fire releases when goods were shipped at half rates to Raleigh and that these releases were frequently signed the day after the goods were shipped; that Pegram gave him a fire release after the cotton was burned; said he did it for his, witness's, accommodation, but that “it was no account”; that sometimes Pegram failed to give any fire releases at all, or he, witness, failed to ask for them. Witness also stated, that Pegram had attended to the shipment of various lots of cotton, prior to and inclusive of the nineteen bales burned, for plaintiffs, and agreed as their agent to release the defendants from losses by fire in consideration that defendants shipped their cotton at half rates.

Pegram was introduced by plaintiff, and testified, that he had no authority from the plaintiffs to sign fire releases for them, nor did he ever inform them that he had done so. That his only authority was to keep their accounts straight on forwarding cotton and to pay their revenue tax on the same; that he never had an agreement with Scott that plaintiff's cotton should go at half rates without fire release; that Scott did not contract to deliver said cotton at Raleigh for $1.75, but it was shipped as through freight to New York for $4.50, and that $4.50, was full rates.

A copy of the fire releases usually taken by the Company and a copy of the bye-laws of the Company were also in evidence. It was proved that the plaintiffs authorized no one to sign fire releases for them. The cotton was burned 23d May, 1866.

His Honor charged the jury:

1. That they must find whether or not there was a special contract between the parties. If there was none, then the defendants were responsible for the loss of the cotton as common carriers.

2. If Pegram was the general agent of the plaintiffs to ship cotton, he had a right to give a fire release without special instructions from the plaintiffs and without their knowledge; and if the jury find that the cotton was shipped under a contract made between Pegram, as agent for plaintiffs, and Scott, whereby the defendants were to transport the cotton at half rates as a consideration of their release from responsibility for fire, then the plaintiffs could not reover.

3. If the jury believe that Ghio had authority to make the...