The Am. Express Co. v. Brunswick

• Decision Date: 31 October 1879
• Citation: 4 Bradw. 606,4 Ill.App. 606
• Parties: THE AMERICAN EXPRESS COMPANYv.JOHN M. BRUNSWICK ET AL.
• Court: United States Appellate Court of Illinois

4 Ill.App. 606

4 Bradw. 606

THE AMERICAN EXPRESS COMPANY

v.JOHN M. BRUNSWICK ET AL.

Appellate Court of Illinois, First District.

October Term, 1879.

OPINION TEXT STARTS HERE

APPEAL from the County Court of Cook county; the Hon. MASON B. LOOMIS, Judge, presiding. Opinion filed December 8, 1879, as of May 2, 1879.

Messrs. SMALL & MOORE, for appellant; contended that the measure of damages for an improper delivery would be the injury arising therefrom, and cited Worth v. Edwards, 52 Barb. 40; Ill. Cent. R. R. Co. v. Finnegan, 21 Ill. 648; Sherman & Redfield on Negligence, § 598; Sedgwick on Damages, 273.

A bailee for hire is only bound to the exercise of ordinary diligence: McGregor v. McDevitt, 6 Ill. 261; Francis v. Schrader, 67 Ill. 272; Story on Bailments, § 23.

It must be gross negligence that will make a bailee for hire, who has promptly recovered goods improperly delivered, to pay the full value: Story on Bailments, 319; Walrath v. Redfield, 11 Barb. 368; Shearman & Redfield on Negligence, § 600.

Mr. B. M. SHAFFNER, for appellees; that the delivery of the bill of lading to appellant was a symbolical delivery of the property so as to vest it in appellant, cited M. C. R. R. Co. v. Phillips, 60 Ill. 190; Wilkes v. Ferris, 5 J. R. 335; Burton v. Curyea, 40 Ill. 320; Rowley v. Bigelow, 12 Pick. 314.

A carrier is liable for wrongful delivery: Devereux v. Barclay, 2 Barn. & Ald. 702; Youl v. Harbottle, 1 Peake, 68; Angell on Carriers, § 324.

Receiving goods with instructions to collect, a carrier is liable if he delivers without receiving payment: Tooker v. Gornur, 2 Hilton, 71; Am. Ex. Co. v. Lesem, 39 Ill. 313; Lubbock v. Inglis, 1 Stark. 104; Am. M. U. Ex. Co. v. Milk, 73 Ill. 224; Am. M. U. Ex. Co. v. Wolf, 79 Ill. 430; Baldwin v. Am. Ex. Co. 23 Ill. 197.

PLEASANTS, J.

The declaration herein is in case, by appellees against appellant and the Chicago, Milwaukee & St. Paul Railway Company, alleging that defendants, as common carriers, received of plaintiffs a pool table, to be safely carried and delivered to Aaron Compton, of Caledonia, Minnesota, upon his complying with the terms therein mentioned, and conducted themselves so negligently in and about the delivery of the same that it became wholly lost to the plaintiffs. An additional count, afterwards filed, averred that they received of plaintiffs, at Hokah, a pool table, to be delivered to Compton, upon his paying, etc., and that they conducted themselves so negligently in and about the delivery of said table that it became wholly lost to the plaintiffs.

Defendants severally filed the general issue, and the cause was tried by the court without a jury.

It appeared that plaintiffs, having contracted the table to Compton for $200--$25 down, $25 to be paid on delivery, and the residue in monthly installments of $15 each, with interest, to be evidenced by his notes and secured by chattel mortgage--on the 9th day of December, 1876, shipped the same by the C. M. & St. P. R'y, in three boxes, marked “The J. M. Brunswick & Balke Co., Caledonia, Minn., via Hokah,” and received a bill of lading. About the same time they delivered to the express company at its Chicago office a package of papers, consisting of the bill of lading,--across the face of which was written a direction to deliver to said company,--the notes and mortgage to be executed by Compton, and a letter to its agent at Hokah, instructing him to deliver the table to Compton upon his paying $25 and executing the said notes and chattel mortgage.

This was a common arrangement for collection in such cases between appellees and the express company, and for its service the latter received the uniform compensation of $2.50.

It happened that the station agent of the railway company at Hokah, which was the one nearest to Caledonia, was also the agent of the express company.

A day or two after the arrival of the boxes and package Compton appeared, paid the freight charges, received and took away the boxes, which were delivered to him by the clerk, under the direction of the agent, without paying the $25, or signing the notes and mortgage, set up the table and used it for a month. Some three weeks after its receipt at the station, the agent's attention was called to the matter, by a demand from the home office, for the money and securities; when, recurring to the package, he discovered he had overlooked the instructions. Thereupon, he immediately conferred with the company's superintendent of that division, and proceeded under his advice to regain possession of the property. Having demanded of Compton a compliance with the terms on which it was to have been delivered, and having been refused, he refunded to Compton the $25 he had paid in Chicago, together with amount of the freight charges, and took back the table, uninjured, as he swears, in as good condition as when first received, and has held it ever since as the agent of the express company, subject to its order.

He further testified as follows: “The agent of the plaintiffs called on me at the station in Hokah, in January or February, 1877, and asked me what about that table, referring to the Compton table. I said to him, ‘the table is here all right.’ He said, ‘I believe they are going to try and sell it.’ ” This certainly is not very satisfactory, but the...