The Ill. Cent. R.R. Co. v. Cobb

• Citation: 72 Ill. 148,1874 WL 8779
• Court: Supreme Court of Illinois
• Decision Date: 31 January 1874
• Parties: THE ILLINOIS CENTRAL RAILROAD COMPANYv.COBB, BLAISDELL & CO.

72 Ill. 148

1874 WL 8779 (Ill.)

THE ILLINOIS CENTRAL RAILROAD COMPANY

v.COBB, BLAISDELL & CO.

Supreme Court of Illinois.

January Term, 1874.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Alexander county; the Hon. DAVID J. BAKER, Judge, presiding.

Messrs. WILLIAMS, BURR & CAPEN, for the appellant.

Mr. D. T. LINEGAR, Mr. WM. J. ALLEN, and Mr. JOHN M. LANSDEN, for the appellees.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was an action of assumpsit, brought by appellees against appellant, to recover damages for unreasonable delay in the transportation of corn and oats, shipped at various stations on appellant's road, in the spring of 1865, consigned to Cairo.

A trial of the cause was had before a jury, which resulted in a verdict against appellant for $43,560.25. A motion for a new trial was entered, which the court overruled, and rendered judgment upon the verdict. The appellant brings the record here by appeal, and assigns various errors for a reversal of the judgment, which, so far as may be material to a correct decision of the points involved in the case, will be considered.

The question raised by appellant in regard to impaneling the jury it is not necessary to consider, as the judgment will have to be reversed upon points arising upon the merits of the case, and upon another trial there will probably be no difficulty in the parties selecting a jury according to the plain provisions of the statute, which will be acceptable to each.

Appellees, upon the trial, introduced evidence tending to prove that the corn and oats involved in this action, after they had been delivered to the railroad company for shipment, should have arrived at Cairo by the 10th day of April, 1865, if no unreasonable delay had occurred in the transportation. The evidence shows the grain did not arrive at that time, but, on the contrary, the first car arrived on the 17th day of April, and from that time the grain continued to arrive until the 20th day of May.

It is clear that if appellant failed to transport the grain to its point of destination within a reasonable time, and the price of the grain declined in the market at Cairo, the point to which it was consigned, then appellees would be entitled to recover the difference between the market price at Cairo when it should have arrived and the time it actually arrived; or if, in consequence of the delay, there ceased to be a market for the grain at Cairo, then it would have been the privilege and right of appellees, without unreasonable delay, to ship the grain to some point where it could have been sold for the most advantageous price, dispose of it to the best advantage, and hold the appellant for the loss.

It follows, then, that one of the vital facts in the case for the jury to determine, was the market price of the grain at Cairo when, in due course of transportation, it should have arrived, and the market value at the time it actually arrived.

Upon this point in the case, the plaintiffs introduced evidence tending to prove the market price of oats to the 10th day of April was from ninety to ninety-five cents per bushel. They then introduced evidence tending to show that they realized less than thirty-five cents per bushel for the oats after its arrival.

For the purpose of rebutting the prima facie case made by appellees, appellant offered to prove that, on the 9th day of May, 1865, a day upon which the grain was arriving, appellees sold between five and six car loads of oats at seventy-five cents per bushel. This evidence was objected to, and the court would not permit it to go to the jury.

There can be no doubt but, in this ruling of the court, there was error, and that, too, upon a point very material in the case. If appellees sold oats in Cairo at that time for seventy-five cents per bushel, that was a fact proper for the consideration of the jury, tending to establish the market price of the grain at that date, and we are unable to conjecture upon what principle appellant was denied the right to establish the market value of oats at that time.

The fact that appellees had proven they realized only thirty-five cents per bushel for the oats, renders the error of the court still more apparent, and clearly establishes the necessity for the admission of the rejected evidence.

For the purpose of establishing the market price of corn, appellees introduced in evidence a correspondence between themselves and a firm of Bacon & Co. The defendant was, in no manner whatever, connected with these letters, and we are aware of no rule of law under which they were admissible. Had appellees desired the evidence of Bacon & Co. upon this brand of the case, they should have called them as witnesses, when their testimony could have been subjected to a cross-examination. Neither the letters of Bacon & Co., nor those of appellees written to them, were competent evidence to go to the jury, and it was error for the court to permit them to be read as evidence.

The next question presented arises upon the 23d instruction given for appellees, which is as follows: “The court instructs the jury, that, in this case, they may allow interest, if they believe, from the evidence, that the circumstances of the case are such as amount to a conversion of the property by the defendant, or that there was fraud on the part of the defendant or its agents, or that there was a gross neglect of duty...