Swedish-American National Bank v. Chicago, B. & Q. Ry. Co.

• Decision Date: 15 December 1905
• Docket Number: Nos. 14,473-(104).,s. 14,473-(104).
• Citation: 96 Minn. 436
• Parties: SWEDISH-AMERICAN NATIONAL BANK OF MINNEAPOLIS v. CHICAGO, BURLINGTON & QUINCY RAILWAY COMPANY.<SMALL><SUP>1</SUP></SMALL>
• Court: Minnesota Supreme Court

96 Minn. 436

SWEDISH-AMERICAN NATIONAL BANK OF MINNEAPOLIS v. CHICAGO, BURLINGTON & QUINCY RAILWAY COMPANY.¹

Nos. 14,473-(104).

Supreme Court of Minnesota.

December 15, 1905.

Action in the district court for Hennepin county to recover $854 for the conversion of certain bran described in two shipping receipts signed by a clerk of defendant's local agent and delivered to Blew, Armstrong & Co., whose drafts against the same were cashed by plaintiff. The case was tried before Pond, J., and a jury, which rendered a verdict

in favor of defendant. From an order, Elliott, J., denying a motion for a new trial, plaintiff appealed. Affirmed.

John Lind and A. Ueland, for appellant.

Young & Lightner, for respondent.

START, C. J.²

The defendant's freight agent at the city of Minneapolis on August 15, 1902, signed and delivered two bills of lading to the firm of Blew, Armstrong & Co., hereafter referred to as the firm, each of which acknowledged the receipt of three hundred fifty sacks of bran to be transported to Marion, Ohio, there to be delivered to the consignee. On the same day the firm drew two drafts for $280 each on the consignee, attached them to the bills of lading, and indorsed them to the plaintiff. In consideration thereof and relying thereon the plaintiff advanced to the firm the full amount of the drafts. The bran never reached its destination, the drafts have never been paid, the firm are insolvent, and this action was brought to recover the value of the bran. The defense was that the defendant never received the bran, and, further, that its agent had no authority to sign and deliver the bills of lading without a delivery of the bran. The trial court instructed the jury to the effect that if the bran was delivered to the defendant it was liable for the value thereof, but if it was not delivered to the defendant it was not liable. The jury returned a verdict for the defendant, and the plaintiff appealed from an order denying its motion for a new trial.

1. The defendant, as part of its evidence to show that the two cars of bran were never received by it, introduced in evidence over the objection of the plaintiff the car record of another carrier at Minneapolis which tended to show that the cars of bran were delivered to such other carrier and shipped out of Minneapolis over its line. This is urged as error, for the alleged reason that the record was not verified, either as required by the common law or by the statute in relation to books of account. It was, however, shown that the record was made in the regular course of the business of such carrier, entries were made therein of every car coming into its possession and its movements within the city limits, and, further, that the entries were made under circumstances precluding any motive for misrepresentation and under conditions calculated to insure accuracy. Whether such entries in any particular case are properly verified as a basis for receiving them in evidence is a question calling for the exercise of practical sense and sound discretion by the trial judge, and his decision of it will not be reversed on appeal, if there is any evidence fairly sustaining his conclusion. Any other rule, in view of the magnitude, methods, and necessities of modern business enterprises, would result in great inconvenience and injustice. "In short, courts must here cease to be pedantic and endeavor to be practical." 2 Wigmore, Ev. 1530; 1 Greenleaf, Ev. § 115. The record here in question was properly received in evidence.

2. The trial court submitted only one question to the jury, which was whether the bran was ever delivered to the defendant, and directed them to return a verdict for the plaintiff if it was delivered, and for the defendant if it was not. In thus narrowing the issue the court must have ruled, as a matter of law, either that the evidence was practically conclusive that the defendant's agents had no authority, real or apparent, to issue bills of lading unless the property therein described had been delivered to the defendant, or that, whether the bills of lading were or were not issued by the authority of the defendant, it was not estopped from showing that the goods therein described were never delivered to it. It follows that, if either proposition was right, the court correctly instructed the jury, but otherwise if both propositions were wrong. It is the contention of the plaintiff that the evidence was sufficient to sustain a finding that ...