Thomas v. Grand Trunk Railway Company, of Canada

• Decision Date: 21 March 1899
• Citation: 42 A. 987,17 Del. 593
• Court: Delaware Superior Court
• Parties: HIRAM M. THOMAS v. THE GRAND TRUNK RAILWAY COMPANY, of Canada

42 A. 987

17 Del. 593

HIRAM M. THOMAS v. THE GRAND TRUNK RAILWAY COMPANY, of Canada

Superior Court of Delaware, New Castle County

March 21, 1899

NOTE.--At the election of Mr. Vandegrift, counsel for defendant, judgment of respondeat ouster was entered, and upon his application leave to amend was granted.

Superior Court, New Castle County, February Term, 1899.

ACTION of trespass on the case (No. 9, November Term, 1897) Demurrer. See facts in opinion of court.

The demurrers are sustained.

Anthony Higgins for plaintiff.

Lewis C. Vandegrift for defendant.

LORE C. J., and PENNEWILL and BOYCE, J. J., sitting.

OPINION

BOYCE J

:There are two counts in the declaration which allege in effect a failure by the defendant to deliver at Toronto a carload of peaches received by it as a common carrier.

To the declaration numerous pleas have been filed; on the first three of which issue has been joined. The plaintiff has demurred to the remaining pleas and the defendant has joined in demurrer. All the pleas, except the first three, are by way of special traverse with the usual abseque hoc. By these pleas the defendant seeks to show tat the plaintiff has no right of action because of the special averments therein.

The eighteenth plea, being the principal plea, is in the following form:

"18. And the said defendant for a further plea to the said second count of the said declaration in this behalf says that the said plaintiff ought not to have or maintain his aforesaid action thereof against it, because it says that the goods and chattels in the said second count of the said declaration mentioned after the delivery thereof to the defendant and after the receipt thereof by the defendant, in manner and form as in said second count mentioned, to wit, on August 30th, A. D. 1893, and before the said goods and chattels were or could have been safely and securely carried and conveyed by the said defendant to the said City of Toronto, and safely and securely delivered for said plaintiff at the said City of Toronto, were through no fault or act of the said defendant and against its will, seized and taken from the possession, care and custody of the defendant, to wit, at Niagara Falls, in the Province of Ontario, in the Dominion of Canada, by the customs officials of the Dominion of Canada for a violation by the said plaintiff of the laws of the Dominion of Canada, the violation of said laws being effected by the representation by said plaintiff upon the bill of lading or shipping receipt accompanying said goods and chattels that he was shipping six hundred baskets or packages of peaches from the United States into the Dominion of Canada, whereas in fact he was shipping seven hundred baskets or packages or upwards. That upon said seizure being made as aforesaid for said violation, the plaintiff was then and there immediately notified by the defendant and the said goods and chattels after said seizure and after the plaintiff had notice thereof, were thereupon, against the will of the defendant, sold by the said customs officials under process issued in that behalf upon and pursuant to the said seizure made as aforesaid for said violation of said laws. Without this that the said defendant so carelessly and negligently conducted itself with respect to said goods and chattels, that by and through the negligence and improper conduct of the said defendant and its servants in that behalf the said goods and chattels became and were wholly lost to the said plaintiff. And this the said defendant is ready to verify, &c."

The other pleas contain a variation of the allegations in the plea which we have cited, some of them averring that it was for an alleged violation; others not averring notice to the plaintiff of the seizure, and others averring seizure by...