Wood v. Chi., M. & St. P. Ry. Co.

• Decision Date: 07 April 1886
• Citation: 68 Iowa 491,27 N.W. 473
• Court: Iowa Supreme Court
• Parties: WOOD v. CHICAGO, M. & ST. P. RY. CO.

68 Iowa 491

27 N.W. 473

WOOD

v.CHICAGO, M. & ST. P. RY. CO.

Supreme Court of Iowa.

Filed April 7, 1886.

Appeal from Delaware district court.

Plaintiff claims damages on account of an alleged failure by defendant to receive certain property for transportation. He alleges in his petition that on the thirteenth of October, 1879, he entered into a verbal contract with defendant, whereby it agreed to receive and ship for him two car-loads of potatoes from Enfield, a station on its road, in Clayton county, to Denison, Texas, at 83 cents per 100 pounds; that, by the terms of the agreement, the property was to be received by defendant, and shipped on the seventeenth of October, and that on that day plaintiff had the property at said station ready for delivery, and there offered to deliver it to defendant, and demanded that defendant then receive and ship the same, but that defendant neglected and refused to furnish storage or cars for the transportation thereof, or to ship the same, by reason of which plaintiff was compelled, for his own protection against damage, to find storage for the property in as convenient a place as possible, in the vicinity of defendant's depot at said station, and that he used due diligence in protecting the same, and that from day to day thereafter he requested defendant to receive and ship the property, but that it neglected and refused to do so until the second day of November following, when it furnished cars, and demanded of plaintiff that he at once load the property upon them, which he did, and that, owing to the coldness of the weather at the time, 10 bushels of the potatoes were frozen before the cars were loaded, and were thrown away; that said cars were not moved until the next day, and when the property arrived at its destination it was injured and damaged by freezing, to such extent as that it was nearly valueless. And it is charged that the loss was occasioned by defendant's failure and refusal to receive and transport the property until the season was so advanced that it was necessarily exposed to frost. There was a verdict and judgment for plaintiff. Defendant appeals.W. A. Hoyt and Noble & Updegraph, for appellant.

Blair & Norris, for appellee.

REED, J.

Plaintiff claims to have made the alleged verbal contract with defendant's station agent at Enfield. The agent was examined as a witness, and testified that he did not agree to have cars at the station to ship the potatoes to Denison at any definite time. There was evidence, however, which would warrant the finding that he did agree that the necessary cars for the transportation of the potatoes would be at Enfield on the seventeenth of October, and that he would receive and ship them on that day. It is undisputed that on the thirteenth of October he informed plaintiff that he could give him a rate of 83 cents per hundred pounds on potatoes, by the car-load, to Denison, Texas, and that plaintiff accepted that rate. After this arrangement was entered into plaintiff made arrangements with the farmers from whom he purchased the potatoes, to deliver them at Enfield on the 17th, and on that day he received at the place a sufficient quantity to load two cars, but defendant did not on that day have cars at that station on which to load them. Plaintiff thereupon stored a portion of the potatoes in a cellar, and the balance in an elevator and warehouse convenient to the depot. Between that day and the second of November he, on a number of occasions, requested the station agent to receive and ship them, but cars were not furnished for their transportation until the latter date. On that day he was informed by the agent that two cars were at the station, on which he could load the potatoes; but if they were not loaded in time to be sent out on the next train, which would pass that station on the morning of the 3d, the cars would be sent back empty. He accordingly loaded them on that day, and they were sent forward the next morning. Before they were sent forward, however, he was required to and did pay the freight to their destination, and the agent issued to him a bill of lading by which defendant undertook to transport the property to Davenport, in this state, which is the end of its line, and there deliver it to a connecting carrier. This bill of lading also recited that the property was received at the owner's risk. The weather was warm and pleasant on the seventeenth of October, and so continued until about the 30th, when it turned cold, and when the potatoes were loaded upon the cars it was freezing, and it remained quite cold until after the cars were sent forward. The potatoes were covered in the cars with straw and blankets; but when they arrived at Denison it was found that they had been badly frozen, and much the greater part of them were rendered entirely worthless. Plaintiff first applied to the agent for information as to the freight charges to Denison before he purchased the potatoes, and the latter communicated with defendant's general freight agent on the subject, and the rate of 83 cents per hundred was offered to plaintiff, in compliance with instructions given by him to the station agent.

The cars on which the potatoes were shipped belonged to the carrier whose line connected with defendant's line at Davenport, and the custom of the companies was, when freight was to be received on defendant's line for transportation over the line of the connecting company, for the latter to furnish the cars on which to load the same at the place of shipment, and the failure of defendant to deliver cars at an earlier date for the shipment in question was occasioned by the failure of the connecting company to furnish them. The district court instructed the jury that, before plaintiff would be entitled to recover, he must prove either (1) that the station agent had express authority from defendant to make the alleged parol contract; or (2) that he was held out by defendant as possessing such authority; or (3) that defendant, with full knowledge of the facts, had ratified the contract. Defendant excepted to this instruction. It also objected to the evidence offered to establish the making of the contract by the agent, on the ground that his authority was not shown. The overruling of this objection, and the giving of this instruction, are now assigned as error.

It is contended that there was no evidence which had any tendency to prove, either that the agent had authority to make the alleged contract, or that he was held out as having such authority, or that defendant had ratified the contract. In a former opinion filed in the case we sustain this view. A rehearing was granted, however, and upon a re-examination of the record we have reached the opposite conclusion. The agent, it is true, testified, in general terms, that he had no authority to make contracts with shippers for cars at a definite day. He did not testify, however, that he was restricted in that regard by special instructions from his employer, or by any general rule of the company. His statement may have been the mere expression of his opinion or conclusion as to the extent of his authority. At least, it is fairly susceptible of that construction, and it is by no means conclusive on the question. As stated above, he was empowered by the general freight agent of defendant to contract for the transportation of such property as plaintiff desired to ship to Denison, Texas, at 83 cents per hundred pounds. This instruction was given in contemplation of the fact that, as the property was to be delivered to the connecting carrier for transportation over its line, it should be loaded upon cars belonging to that company. It therefore necessarily empowered him to contract for the shipment at a future date. It was also given in contemplation of the nature of the property to be shipped; and, in the absence of special instructions or restrictions, empowered him to make such contracts, as to the time of shipment, as the nature of the property required. Suppose the company should authorize an agent to contract with a...