The Chicago & Nw. Ry. Co. v. Allen N. Merrill.

Decision Date30 September 1868
Citation1868 WL 5136,48 Ill. 425
CourtIllinois Supreme Court


APPEAL from the Circuit Court of Kane county; the Hon. SYLVANUS WILCOX, Judge, presiding.

The opinion states the case.

Messrs. HARRINGTON & BARRY, for the appellants.

Mr. CHARLES WHEATON, for the appellee.

Mr. JUSTICE LAWRENCE delivered the opinion of the Court:

This was an action of assumpsit, brought against the railway company, to recover for the value of some castings sent over their road, from Geneva to Winnebago, in this State. The goods were marked as follows: John L. Page, Winnebago; goods by R. R., care of American Express Co., C. O. D.,” and were shipped by the railroad with the directions thus marked on them. They were safely delivered to Page, upon the payment of freight. He proved insolvent, and Merrill, the consignor, having failed to recover the price of his goods from him, has brought this suit against the company, and recovered a verdict and judgment in the circuit court.

There is no possible ground upon which this judgment can be sustained upon the record before us. We held in the case of The American Express Co. v. Lesem, 39 Ill. 313, that in an action against an express company, the plaintiff might aver in his declaration, and prove upon the trial, in what sense the characters C. O. D. were used in the business of express companies, and what was the usage of those companies in regard to packages thus marked, and what responsibilities they assumed by giving a receipt with these characters written upon it. But in the case at bar, although the goods were marked C. O. D., the receipt given by the company contained no such characters, nor any language indicating an undertaking on the part of the company to collect from the consignee the price of the goods. Not only that, but there is not a scintilla of evidence in the record, that this railway company ever undertakes the duties of a collecting agent, or that it recognizes the characters, C. O. D., when inscribed upon an article of transportation, as imposing upon itself any additional duties or obligations.

And not only was there an entire absence of evidence showing such usage, but the direct reverse was positively proven. Besides all this, it was also shown that no bill for the price of the goods, was delivered by the consignor to the company, so that, if it had desired to collect their value from the consignee, upon...

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11 cases
  • Commonwealth v. People's Express Co.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • May 18, 1909
    ...constitutes him the proper person to whom to make delivery (Russell v. Livingston, 16 N. Y. 516; C. & N. W. R. R. Co. v. Merrill, 48 Ill. 425;Ela v. Am. Merchants' Union Ex. Co., 29 Wis. 611, 9 Am. Rep. 619). This circumstance may be weighty evidence [201 Mass. 573]as to who is in fact the ......
  • Commonwealth v. People's Express Co.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • May 18, 1909
    ...... whom to make delivery ( Russell v. Livingston, 16. N.Y. 516; C. & N.W. R. R. Co. v. Merrill, 48 Ill. 425; Ela v. Am. Merchants' Union Ex. Co., 29. Wis. 611, 9 Am. Rep. 619). This ......
  • Arkansas Southern Railway Company v. German National Bank
    • United States
    • Supreme Court of Arkansas
    • January 20, 1906
    ...... Federal Constitution under discussion? We think not.". . .          In. Chicago, Milwaukee & St. Paul Railway Company v. Solan , 169 U.S. 133, 42 L.Ed. 688, 18 S.Ct. 268, it. ......
  • Grand Rapids, E.L. & P. Co. v. Grand Rapids, E.E.L. & F.G. Co.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • January 9, 1888
    ......262, and Gas-light. Co. v. Gas Co., 25 Conn. 19. To the same effect, see. Chicago v. Rumpff, 45 Ill. 90, and Railway Co. v. Railway Co., 79 Ala. 465. In City of Brenham, v. ... purposes. Sturtevants v. City of Alton, 3 McLean, . 393; French v. Quincy, 3 Allen, 9; People v. Harris, 4 Cal. 9; Torrent v. Muskegon, 47 Mich. 115, 10 N.W. 132;. Willard v. ......
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