Laws

3 If the goods Post Date: Fri, 25 Jul 2008 23:14:11 +0000
" Held, that a motion to require the plaintiffs to make their complaint more definite and certain by stating " on what day or days the fertilizers alleged to have been lost" were received, was prop- erly refuse d Dunbar v Port Royal, etc, RCo, 19 S Car 601 Time of Making Contract Immaterial Varianc e The complaint alleged that about December n, 1889, defendant contracted to carry certain logs im- mediately, but did not do so until four weeks later, and that by reason thereof plaintiff was injure d It ap- peared that plaintiff commenced to haul the logs to the railroad about January 3, 1890, and, because defend- ant was not ready to receive them on the cars, was obliged to pile them on skidways at extra expense; that de- fendant commenced to transport the logs on January 29, and completed the shipment on April 22; that plain- tiff had finished hauling on March 22, and from that time to April 22 was compelled to employ men and teams to load the logs which had been skidded and piled before the ship- ment commence d Held, that the variance between this evidence and the complaintwas immaterial, and that plaintiff was not limited in his recov- ery to damages suffered during the four weeks after December N Law- rence v Milwaukee, etc, RCo, 84 Wi S 428 2 Dalston v Jansen, i L d Ray M 58; Deming v Grand Trunk RCo, 48 N H 455 ; Carter v Graves, 9 Yerg (Tenn) 446 See also Bristol v Rensselaer, etc, RCo, 9 Barb ( N Y) 158; Ferguson v Cappeau, 6 HaR J (Md) 394; Moore v Wilson, i T R659 In assumpsit to recover the value of goods lost in transit, the declara- tion alleged a promise by defendant to carry safely and deliver the goods " upon freight therefor to be paid hi M" It was objected that the dec- laration should have alleged that the freight was paid or tendered to be pai d It was held that, the declaration having presented a case in which no freight was earned, it would not only have been nugatory to aver either a payment or tender, but such an aver- ment would have been i I consistent with the other allegations in the declaration, showing that the defend- ant was entitled to no freight. Fer- guson v Cappeau, 6Har J (Md) Varianc e Where a declaration states a delivery of wool to the car- rier at its depot, to be transported immediately to a place named, and avers that in consideration thereof and of a certain reward to the carrier promised, etc held, that on receiv- ing the wool under an arrangement Actions ex Delict O In actions ex delicto for injury to goods, it has been held unnecessary to allege that any consideration was paid or agreed to be paid ; * and it would seem that such allegation would not only be unnecessary, but impropeR2 (8) Description of Propert Y Unless an action against the car- rier is founded on a bill of lading or some special executory con- tract, no great particularity in describing the property is require d Certainty of description to a common intent will be sufficient. 3 If the goods are shipped under a bill of lading, it is not necessary to describe them more particularly than they are described in that instrument.

Autor of the post: Undefined

In assumpsit against a carrier Post Date: Fri, 25 Jul 2008 22:54:22 +0000
4 previously made, a duty arose to transport it accordingly, for which the law will imply a promise to do so, and consequently there was no variance in the proof of the consideratio N Deming v Grand Trunk RCo, 48 N H 455- 1 Hall v Cheney, 36 N H 26 2 Smith v Seward, 3 Pa St 342; Corbett v Packington, 6B C 268, 13 E C L 170; Whittenton Mfg Co v Memphis, etc, Packet Co, 21 Fed Rep 896; Baylis v Lintott, L R, 8 C 3 Angell on Car, 447; Schouler on Bailments, 575 Description of Draft or Bond S In an action against a carrier for not com- plying with a contract to carry and deliver a draft, the complaint alleged that it was signed " John Q Jackson;" the proof showed that it was signed " John Q Jackson, Agent" Held, an immaterial varianc e Zeigler v Wells, 28Cal264 Where state bonds intrusted to an express company are lost through its negligence, the owner may recover their value without stating in the complaint, or furnishing to the com- pany as a condition precedent, the numbers or dates of the bonds, where there is no rule of the company re- quiring it. Martin v American Ex- press Co, 19 Wi S 336 Weight. In assumpsit against a carrier where the declaration alleged that plaintiffs delivered to defend- ants a large quantity of wool, to wit, 7837 pounds, which they promised to transport, and the proof was of a less quantity, it was held that there was no varianc e Deming v Grand Trunk RCo, 48 N H 455 Number and Value of Cattl e In an action for damages for cattle killed and injured during shipment, an al- legation that 500 head, worth $16 each, were killed, and 620 others were in- jured " to the extent of $6 or $7 each," is sufficiently specifi C Mis- souri Pac RCo v Edwards, 78 Tex 307- In an action for a loss of sheep transported and for injury to others, a complaint alleging that all the sheep were of great value, and that plain- tiff's damage was $850, without any- thing to show the value of those lost, and how much the others not lost were depreciated in value, is not suffi- ciently specifi C Gulf, etc, RCo v Wilhelm, 3 Tex App Civ Ca S,458 Itemizing Goods LoSt Where it is sought to recoverdamages from a rail- road company forvarious articles lost, it is sufficient to itemize in the com- plaint the articles lost, with the value of each article and the aggregate value of the whole, and then to allege the aggregate damage to the whole, without specifying the damage to each article separatel Y Brown v Adams, 3 Tex App Civ Ca S, 389 Defective Statement Cured by Verdi Ct In an action against a carrier for wheat destroyed, where the value of the wheat and the damage to plain- tiff could fairly be inferred from the allegations of the petition, but such value and damage were not alleged in terms, it was held, in the absence of a motion for a more specific state- ment, tha^ the petition was sufficient to support a verdict and judgment for plaintiff Independence Mills Co v Burlington, etc, RCo, 72 Iowa 535 4 Camden v Steamboat Georgia, 6 Mo 381 In this case the complaint described the goods as they were de- scribed in the bill of ladin g The court said : " It could answer no good pur- pose to the defendant to have any statement more particular than that of Actions for Loss or Injur Y CARRIER S Declaration, Complaint, etc (9) Description of Termin I Where the proof as to the termini of the transportation varies materially from the allegations of the declaration in that regard, such variance will be fatal to a recov- ery ; * but a merely nominal variance is harmles S 2 (10) Description of Injur Y In an action against a carrier the recovery is limited strictly to the issues made, and the declaration, petition, or complaint should indicate with precision the nature of the damage or injury for which relief is sought.

Autor of the post: Undefined

A declaration against a carrier Post Date: Fri, 25 Jul 2008 22:43:51 +0000
3 the number of boxes, etc, delivered to hi M If the steamboat proves that the boxes, etc, were delivered by it in such order as they were received, it has proved all that is necessary to throw the burden of proving special damage on the complainant. It can never be expected that the agents of a boat can or will examine the con- tents of a box or package of goods which they undertake to transport; it would avail them nothing, then, to state in the complaint the contents of such box or packag e The plaintiffs will be compelled to resort to testi- mony to prove the contents of such box or package when delivered to the boat, and the quantity deficient or damaged when delivered to the M The complaint then appears to be sufficiently particula R" 1 Tucker v Cracklin, z St Ark 385, 3 E C L 456; Rome RCo v Sulli- van, 25 Ga 228 Illustration S Where a declaration in assumpsit alleged a contract to carry merchandise from Whitechapel to Thornden, and the evidence ad- duced showed Aldgate to be the point from which the goods were to be car- ried, it was held a fatal varianc e Tucker v Cracklin, 2 St Ark 385, 3 E C L 456 In an action against a common car- rier for failure to deliver goods within the stipulated time at d, evidence tending to show loss to the shipper because of the nonarrival of the goods at M within a reasonable time is in- admissible, there being no averment in the pleadings that the goods were consigned to M, or that their failure to reach M in due time was caused by any delay in shipment by the carrieREast Tennessee, etc, RCo v Hale, 85 Tenn 69, 27 A M Eng RCa S 36 The contract declared upon, being upon an undertaking to carry from Eufaula, Ala, and deliver at Albany, Ga, and that proved being a special contract to carry from Louisville, Ky, to Quitman, Ga, via Atlanta, the evi- dence does not support the declara- tio N The two contracts are different causes of action; and in a suit on one there can be no recovery on the otheRCentral, R, etc, Co v Tucker, 79 Ga 128 Amendment. A declaration against a carrier alleged that defendant re- ceived sheep of plaintiff to transport to "Elwood, Ka N," and the proof showed an agreement to transport to " Ellinwood, Ka N" Held, no rror to allow an amendment by striking out " Elwood " and inserting " Ellin- wood," even after overruling a mo- tion for a new trial, when the motion to amend was made before deciding the motion for a new tria L McCollom v Indianapolis, etc, RCo, 94 111 535 2 Woodward v Booth, 7B C 301, 14 E C L 48; Beckford v Crut- well, 5 C p 242, 24 E C L 300 Where the declaration in case stated that plaintiff delivered a trunk to the defendant, to be put into a coach at Chester, to wit, at, etc, and safely carried to Shrewsbury, and that through defendant's negligence it was lost, and it appeared in evi- dence that the trunk was delivered to the defendant at the city of Chester, which is a county of itself, separate from the county of Chester at large, but within its ambit held, that this was not a material variance, but that the declaration was supported by the evidence, as no evidence was given of the existence of any other place called ChesTer Woodward v Booth, 7B C 301, 14 E C L 48 3 Nudd v Wells, n Wi S 487; Miami Powder Co v Port Royal, etc, RCo, 38 S Car 78, 55 A M Eng RCa S 688 Allegation of Nondelivery, and Proof of Injury in Transportatio N Where a complaint in an action against a carrier charges a nondelivery of the goods consigned for carriage, no re- covery can be had for an injury to the (11) Negligence of CarrieRIt is not unusual to insert in a declaration averments which affect only the rule of care and neg- ligence which should govern the cas e 1 Thus, declarations alleg- ing the defendants to be common carriers, and at the same time averring negligence on their part, are usual and well approved, both in actions of tort 2 and actions of contra Ct 3 In such cases failure to prove the allegations of negligence is no variance, and the plaintiff may recover without such proof, provided the evi- dence shows a case under the general rule respecting the liability of carrier S 4 How Pleade d Where negligence is alleged it is sufficient to state generally that the loss or injury was caused by defendant's negli- gence, without setting forth the facts constituting the negligenc e 5 goods in transportatio N Nudd v Wells, ii Wi S 407; South N Ala RCo v Wilson, 78 Ala 587, 27 A M Eng RCa S 41; Alabama g S RCo v Grabfelder, 83 Ala 200 Allegation of Improper Stowage, and Proof of Injury from Other Caus e On a libel for damage, alleging "that by reason of the neglect and failure of the said master * * * to properly stow the said merchandise, and of the im- proper, unsafe, and unseaworthy con- dition of the said steamer, and by the want of proper care of the said mas- ter, * * * and by reason of the im- proper and insufficient dunnage of the said merchandise, and the unsafe and leaky condition of the deck of said steamer on said voyage, the said mer- chandise was damaged," no recovery can be had for damage by coal-dust not resulting from improper stowag e The Thomas Melville, 36 Fed Rep 708 1 Sargent v Birchard, 43 Vt 570 2 Sargent v Birchard, 43 Vt 570; Williams v Baltimore, etc, RCo, 9 W Va 33 3 School DiSt v Boston, etc, RCo, 102 Mas S 552; Dale v Hall, i Wil S 281 4 Sargent v Birchard, 43 Vt 570; Richards v London, etc, RCo, 7 C b 839, 62 E C L 839 In an action for loss of a car load of mules, thepetition alleged adeliveryof the mules to defendants as a common carrier and a losswhile in theircharge; and further alleged that defendants so negligently managed their train that the car containing the mules was set on fire and the mules were destroye d Held, to constitute a cause of action, even without the allegation of negli- genc e McFadden v Missouri Pac RCo, 92 Mo 343 On the Other Hand, if the plaintiff does prove the allegation of negligence he may recover, even though there are circumstances limiting the responsi- bility of the carrier below the com- mon-law rul e Sargent v Birchard, 43 Vt 570 5 McCauley v Davidson, 10 Min N 418; Peck v Weeks, 34 Con N 154; Missouri Pac RCo v Barnes, 2 Tex App Civ Ca S, 575 But see Ruben v Ludgate Hill Steamship Co (Supreme Ct), 17 N Y St Rep 17; Gulf, etc, RCo v Wilhelm (Tex App, 1891), 16 S W Rep 109 Reason for Rul e " Negligence is the ultimate fact to be pleaded, and it forms part of the act from which an injury arises, or by which con- tributory negligence is made out.

Autor of the post: Undefined

If a declaration Post Date: Fri, 25 Jul 2008 22:25:50 +0000
It is the absence of care in the perform- ance of an act, and is not merely the result of such absence, but the ab- sence itself; and it is not, therefore, a mere conclusion of law, and may be pleaded generall Y" Louisville, etc, RCo v Wolfe, 80 Ky 82 Illustration S A complaint alleging that defendant did not exercise due and proper care in the carriage of plaintiff's hogs, but that defendant's agents negligently managed defend- ant's steamboat, and that by reason of said negligent conduct of defendant and its agents said hogs were de- stroyed by fire, was held sufficiently definit e Carlisle v Keokuk Northern Line Packet Co, 82 Mo 40 In an action gainst a carrier for injuries to cattle, the petition alleged that defendant neglected to feed and water the M Held, that it was not (12) Statement of Contract or DutyActions ex Delict Ol N ac- tions of tort against a carrier, the duty on which the liability is alleged to be founded, or the contract out of which the tort arises, should be correctly state d A variance between the duty or contract as stated and the proof adduced in support thereof may be fatal to a recovery ; * for whether the action is in form ex necessary to allege the place or places on the road where defendant failed to feed and water the cattle, or where it should have fed and watered the M Gulf, etc, RCo v Wilhelm (Tex App, 1891), 16 S W Rep 109 Evidence Admissible under Allegation of Negligenc e In an action for dam- ages resulting from a delay in the shipment of cattle, evidence that de- fendant's track was in a bad condi- tion at the place where the delay occurred may be shown under an al- legation that the delay was caused by the negligence of Defendant St Louis, etc, RCo v Turner, i Tex Civ App 625 Allegata et Probat A In an action for a negligent breach of contract to transport cattle, the petition alleged as acts of negligence on the part of the railroad company, defendant: (i) that it had had the cattle loaded into an unsafe car so that they had to be taken out and loaded into another; (2) that the loading into this car had been negligently don e By the con- tract the plaintiff had expressly agreed to load and unload at his own ris K At the trial he gave evi- dence that the car into which the cat- tle were transferred was not pro- vided with proper bedding, field, that this evidence was incompetent, because (i) if bedding the cattle was embraced in the item "loading," the plaintiff had assumed the risk of this; (2) if it was not, then the negligence shown did not fall within the allega- tions of the petitio N Atchison v Chicago, etc, RCo, 80 Mo 213 Statement of Damages Resulting from Several Negligent Act S Where sev- eral acts of negligence are charged, the complaint should show what dam- ages result from each a Ct In an ac- tion to recover damages for failure to furnish cars for the shipment of stock at the time agreed, and for failure to transport such stock with reason- able diligence, the complaint should show what part of the total delay was occasioned by the failure to furnish cars, and what part occurred en rout e Richardson v Chicago, etc, RCo, 58 Wi S 534, 16 A M Eng RCa S 172 Gross Negligence Provable under Al- legatio N A declaration alleging that goods had been delivered to defend- ants as carriers, to be conveyed by them for a reasonable reward, and that they undertook to carry them safely and securely, and deliver them accordingly, and assigning for breach that they lost the same, is sufficient to admit proof of gross negligenc e Smith v Home, 2 Moore 18, 8 Taunt 144, 4 E C L 50 1 Govett v Radnidge, 3 East 70; Max -v Roberts, 12 East 89; Ireland v Johnson, i Bin g N Ca S 162, 27 E C L 341; Wright v Geer, 6 Vt 151; Vail v Strong, 10 Vt 457; Mann v Birchard, 40 Vt 326; Toledo, etc, RCo v Roberts, 71 111 540; Chi- cago, etc, RCo v Hale, 2 111 App 150; 2 Green L Ev, 208; An- gell on Car, 440; Hutchinson on Car, 750; Schouler on Bail, 577 " In actions of tort arising out of a contract, the statement of the con- tract is often as material as in an ac- tion on the contract itself" Ireland v Johnson, I Bin g N Ca S 162, 27 E C L 341 In an action to recover damages of defendants as common carriers for negligence in transporting a consign- ment, if the declaration alleges a special contract for unusual dispatch in transportation, and the evidence does not show any agreement for un- usual dispatch, the variance will be deemed fatal whether the action is one of tort or of contra Ct Mann v Birch- ard, 40 Vt 326 Under the Michigan Practic e Where a carrier is sued to recover for in- juries resulting from defects in the cars in which the horses were placed, the wrong or negligence may properly be alleged as a breach of its duty to carry safel Y Great Western RCo v Hawkins, 18 Mich 427 Objections for Variance How Waive d contractu or ex delicto, if the cause of action as set forth origi- nates in a contract, the contract must be proved as lai d 1 Divisible Averment. In actions of tort the declaration may con- tain a divisible averment, and a recovery may be had for so much as is prove d 8 (13) Statement of Contract Actions ex Contractu Generall Y Where the action is ex contractu the contract must be set out ac- curately and proved materially as laid ; a variance will be fatal to a recover Y 3 Where a declaration is on a promise to do sev- A complaint in an action against a carrier alleged the shipment of goods, and that before they reached their place of destination the consignee had removed to another place, and that the carrier was directed to for- ward the goods, which he failed to do, and that they were negligently loSt The evidence showed that the con- signee's agent demanded the goods at the place of destination, but that a delivery was negligently refuse d There being no objection taken at the trial to the variance between the declaration and the evidence, a re- covery was warrante d Rosebrook v Dinsmore, 5 Abb App De C ( N Y) 118 Amendment. If a declaration in an action against a carrier for damages states a cause of action at common law, it cannot be so amended as to charge a purely statutory liabilit Y Exposition Cotton Mills v Western, etc, RCo, 83 Ga 441, 40 A M Eng RCa S i6 Q 1 Mann z Birchard, 40 Vt 326; Wright v Geer, 6 Vt 151; Vail v Strong, 10 Vt 457 2 Figgins v Cogswell, 3 M S Illustratio N If the declaration al- leges an undertaking by the carrier to transport several packages, and the undertaking, as proved, is to carry only one, a recovery may never- theless be had foras muchas is proved, because the undertaking is divisible, although it appears, from the declara- tion, to be entir e Hutchinson on Car, 750 3 Stone v Knowlton, 3 Wen d ( N Y) 374; Weed v Saratoga, etc, RCo, 19 Wen d ( N Y) 534; Hughes v Great Western RCo, 14 CB 637, 78 E C L 637; Slim v Great Northern RCo, 14 CB 647, 78 E C L 645; Camp v Hartford, etc, Steamboat Co, 43 Con N 333; Perpetual In S Co v Steamboat Detroit, 6 Mo 374 Plaintiff shipped his cattle in a car with cattle belonging to a third party, and in an action for injuries to his stock declared on a contract to carry made with hi M There was a dispute between him and the company as to whether the contract was with plain- tiff alone or with him and the third part Y Held, that if it was made with the two jointly it would be variant from the one declared on; but that if it was made with him alone, at a fixed rate for the car, and the ownership of the cattle was several as between the two shippers, and plaintiff's cattle alone were injured, the right of ac- tion would be in hi M Jacksonville, etc, RCo v Hall, 2 111 App 618 Filing Copy of Contract with Com- plaint.

Autor of the post: Undefined

Mitchell v Georgia RCo, 68 Post Date: Fri, 25 Jul 2008 22:12:57 +0000
Under the Indiana Code, where a contract of shipment sued on is evidenced by a bill of lading, the complaint should be based on the con- tract, refer to it, and a copy be filed with the complaint. Indianapolis, etc, RCo v Remm Y 13 Ind 518 Filing Copy of Contract with Libe L Where the cause of action stated in a libel arises out of a written contract of affreightment, the libel should al- lege that fact and annex the contract, or give a legal excuse for not doing So Sun Mut In S Co v Mississippi Valley Trans P Co, 14 Fed Rep 699 Use of Terms of Fixed Meanin g The letters " C O d," used in a com- plaint against an express company for loss of goods, have acquired, in the commerce of the country a fixed and determinate meaning that courts and juries will readily understand, and no averment as to their meanjng is necessar Y U S Express Co v Keefer, 59 Ind 263 Amendment S If suit is brought on a written contract of shipment, the declaration cannot be amended so as to show that the contract was pro- cured by false representations of de- fendant as to the capacity and con- Alternative Contra Ct If a contract is in the alternative it should be so counted upon in the declaratio N When the contract stated is absolute, and the contract proved is in the alternative, the vari- ance will be fata L 3 On the other hand, a declaration alleging an struction of the car to be used for transportation, such representations not being in the contract; and that by reason of such deception the ani- mals shipped were crowded and in- jure d The first suit is on contract; the second in tort. Mitchell v Georgia RCo, 68 Ga 644 See also Cox v Richmond, etc, RCo, 87 Ga 747 Under a complaint alleging a con- tract by defendant to ship, transport, and carry plaintiff's goods to New York, a bill whereby defendant only agreed to forward to New York, with the stipulations that it " assumes no liability beyond its own rails," and " will not be responsible for delays or damages from unavoidable causes " is inadmissible, the two contracts be- ing different; but possibly this objec- tion might be obviated by amendment.

Autor of the post: Undefined

If stated as an absolute Post Date: Fri, 25 Jul 2008 21:56:34 +0000
Dunbar v Port Royal, etc, RCo, 36 S Car No Failure of Proof Under a statute providing that when the allegation of a claim, to which proof is directed, is unproved, not in some particular or particulars only, but in its general scope and meaning, it is not to be deemed a case of variance, but a fail- ure of proof A complaint in an action for damages, based on a special con- tract, is not sustained by proof either of a breach of an implied contract or of the legal duty of the defendant, as a common carrier, to transport the stock in a reasonable ti Me In such case there is not a variance, but a fail- ure of proof within the meaning of the statut e Jeffersonville, etc, RCo v Ensley, 50 Ind 378; Jefferson- ville, etc, RCo v Worland, 50 Ind Hecovery on Contract Other than that Allege d In an action for damages al- leged to have been caused by the fail- ure of a railroad company to ship freight at a time stipulated, it was error to submit to the jury the ques- tion of damages caused by the deten- tion en route of the freight shipped under a subsequent contract, espe- cially as the complaint did not contain any allegation of a breach in that re- spe Ct Waters v Richmond, etc, RCo, no N Car 338 1 Weed v Saratoga, etc, RCo, 19 Wen d ( N Y) 534 In assumpsit against a carrier the declaration alleged that defendants undertook to carry for plaintiffs a trunk containing certain goods and bank bills in consideration of a cer- tain reward, and that through defend- ants' negligence the trunk and its contents were loSt The proof showed that the trunk belonged to a stranger, and it did not appear that plaintiffs had any connection with it. The court said : " The proof is, at most, of a contract with the plaintiffs to carry the money onl Y The declaration then fails in describing correctly a special executory contract wherein great ex- actness is always demande d Where the declaration is on a promise to do several things and only one is proved, this is a varianc e" Weed v Saratoga, etc, RCo, 19 Wen d ( N Y) 534 2 Yate z/ Willan, 2 East 128; Penny v Porter, 2 East 2; Stone v Knowl- ton, 3 Wen d ( N Y) 374; Harmony v Bingham, 12 N Y 99 See also Yelv 76; Hilt v Campbell, 6 Me 109 A contract in the alternative to transport fifteen or twenty tons of marble from one place to another must be stated according to the terms of it. If stated as an absolute con- tract for the transportation of twenty tons, and not of fifteen or twenty tons, the variance will be fata L Stone v Knowlton, 3 Wen d ( N Y) 374 What ia not a Contract in the Alterna- tiv e A contract to transport goods to a particular place within a given time, for a stated sum, and that in case of failure there shall be a de- duction from such sum, is not in the alternativ e The act to be performed by defendant is the transportation of the property, and the consequence ot nonperformance is the receipt of a less sum as freight, which is not strictly an alternative act to be done, but is rather in the nature of liquidated damages for nonperformanc e Har- mony v Bingham, 12 N Y 99 alternative contract to deliver to plaintiff, or to a person named for plaintiff, is not supported by proof of a contract to deliver to and for such person ; nor does such proof support the allegation of a contract to deliver generally for plaintiff, without specifying to who M 1 Conditions Limiting Liabilit Y Conditions in the contract limiting the carrier's liability should be state d If the declaration alleges an un- qualified contract to carry, and the contract proved is to carry, the defendant not being answerable for certain risks, there is a varianc e 2 If there are provisions in the contract other than are 1 Atlanta, etc, RCo v Texas Grate Co, 81 Ga 602, 40 A M Eng RCa S 130 2 Connecticut Camp v Hartford, etc, Steamboat Co, 43 Con N 333 Indiana Lake Shore, etc, RCo v Bennett, 89 Ind 457; Hall v Penn- sylvania Co, 90 Ind 459, 16 A M Eng RCa S 165; Bartlett v Pitts- burgh, etc, RCo, 94 Ind 281, 18 A M Eng RCa S 549; Indianapolis, etc, RCo v Forsythe, 4 Ind App 326 Ohio Davidson v Graham, 2 Ohio St 131 Pennsylvania Stump v Hutchin- son, II Pa St 533 West VirginiaBaltimore, etc, RCo v Rathbone, i W Va 87 Englan d Latham v Rutley, 2B C 20, 9 E C L 10; Austin v Man- chester, etc, RCo, 16 QB 600, 15 JuR670, 20 L J QB 440; Simons v Great Western RCo, 2 CB, N S 620, 89 E C L 620; White v Great Western RCo, 2 CB, N S 7, 89 E C L 7; York, etc, RCo v Crisp, 14 CB 527, 78 E C L 527 Illustration S A promise laid to de- liver in good order cannot be sup- ported by proof of promise to deliver in good order, "the dangers of the river and fire excepte d" Stump v Hutchinson, n Pa St 533 The first count of a declaration al- leged a contract of carriage under which the carriers were not to be re- sponsible for damages resulting from unavoidable causes, and alleged as a breach neglect to carr Y The second count alleged that the goods were to be imported into the United States, before expiration of the reciprocity treaty; the breach, that defendants did not so carr Y There was an additional condition in the contract, put in evi- dence by plaintiffs, that as to goods ad- dressed to consignees resident beyond places where defendants had stations, defendants' responsibility should cease upon their giving notice to the carriers onward that they were prepared to de- liver the goods to them for further transportatio N Held, a variance as to both count S Fraser v Grand Trunk RCo, 26 U C QB 488 In assumpsit against a steamboat company for damage by peril of the sea to goods delivered defendants for transportation, where the declaration was against defendants as common carriers, and the bill of lading offered in evidence provided that defendants should not be liable for damages to the goods from any perils or acci- dents not resulting from their negli- gence or that of their agents, it was held that there was a fatal variance between the pleading and the proof, and that there could be no recover Y Camp -v Hartford, etc, Steamboat Co, 43 Con N 333 Where the declaration alleged a contract to carry horses securely, and the contract was to carry the horses at plaintiff's risk, it was held a fatal varianc e Shaw v York, etc, Co, 13 QB 347, 66 E C L 347 Where a declaration in assumpsit alleged that for certain hire and re- ward defendants undertook to carry goods to London anddeliverthem safe- ly at Dover, and the contract was proved to carry and deliver safely (fire and robbery excepted), defendants were entitled to a nonsuit.

Autor of the post: Undefined

: [here describe succinctly the goods] Post Date: Fri, 25 Jul 2008 21:38:49 +0000
Latham v, Rutley, 2B C 20, 9 E C L 10 What is not a Varianc e A declara- tion in assumpsit alleged that the de- fendant, a railroad company, under- took, as a common carrier, for a valuable consideration to transport a mare and colt for the plaintiff over the line of its road from g to d, and that the animals were injured through the negligence of defendant Actions for Loss or Injur Y CARRIER S Declaration, Complaint, etc usually embodied therein, it is not necessary to aver the reasons that influenced or the purposes that controlled the shipper or carrier in inserting the M Such allegations add nothing to the legal effect of the contra Ct 1 Collateral stipulation S Where the contract contains several dis- tinct parts and collateral provisions, it will be sufficient to state so much of it as contains the entire act or duty which is to be performed and the entire consideration for such act or dut Y 2 (14) Avoiding Stipulations Limiting Liabilit Y If a contract of shipment requires notice of loss or injury to be given within a specified time, the plaintiff may avoid the effect of this stipulation as a defense by allegations showing that a compliance therewith was rendered impossible by the defendant's own a Ct 3 (15) Description of Relation inter Se Actions against Connecting Carrier S In suing the last of several connecting carriers for a loss, it is necessary to allege that the carriers were joint contractors, 4 or in transportatio N The contract was expressed in a bill of lading, which exempted defendant from liability for damage from certain specified causes, none of which covered the negligence charge d Held, that there was no varianc e Coupland v Hou- satonic RCo, 61 Con N 531 1 Jeffersonville, etc, RCo -v Irvin, 46 Ind 188 2 Clarke v Gray, 6 East 564, in which it was held that a part of the contract, which respects only the liquidation of damages after a right to them has accrued, need not be set forth in the declaration, but is only matter of evidence to be given to the jury in reduction of damage S Stipulation as to Insurance by Con- signees Effe Ct The defendants re- ceived the plaintiffs' goods on board their boat or box, to be carried by them for freight; and in a receipt which they gave for the goods, speci- fying the terms of the contract, it was stipulated that insurance should be effected by the consignee S Held, that supposing it to have been the intention that the stipulation to in- sure was to be performed by the plaintiffs, or the consignees as their agents, and admitting that insurance could have been of any benefit to the defendants, still the stipulation to in- sure formed no part of the considera- tion of the defendants' undertaking to carry, and in an action for carry- ing negligently, whereby the goods were damaged, it need not be set out in the declaration; nor need perform- ance, or excuse for nonperformance,- be averre d Brenan v Shelton, 2 Bailey ( S Car) 152 3 Baker v Missouri Pac RCo, 19 Mo App 321, in which case an al- legation that plaintiff did not make his claim for damages as required, for the reason that defendant, by its own wilful act, rendered it impossible, by refusing to deliver to plaintiff the sheep at the point of delivery and des- tination, but, on the contrary, sent them on another railway line, against plaintiff's protest, to a station one hundred miles distant from any office of defendant ; that plaintiff first discov- ered the damage done after delivery to him at the original place of destina- tion, and did not discover it sooner because of defendant's wrongful con- duct, was held sufficient to excuse plaintiff from giving the required notic e Verificatio N In an action for in- juries to stock in shipment, plaintiff, if he desires to avoid the effect of stipulation^ in the shipping contract relieving the defendant from liability for the acts complained of, on the ground that there was no considera- tion, must set up the want of consid- eration by affidavit, as required by the Texas statut e Gulf, etc, RCo v Wright, I Tex Civ App 402 4 Felder v Columbia, etc, RCo 21 S Car 35 See also Bradford v South Carolina RCo, 7 Rich ( S Car) 201 Question of Nonjoinder not Raised by DemurreRIn an action to recover from a railroad company the value of flour delivered to a combination of that the property was delivered to and received by the Defendant 1 If, however, several carriers associate and form a continuous line, and contract to carry goods through for an agreed price, which the shipper pays in one sum and which the carriers agree to divide among themselves, they are jointly and severally liable for a loss on any part of the line, and the word " partners," or any particular word to describe the relation existing between the carriers, need not be used in the petitio N 2 (16) /;/ Special Proceedings Given by Statut e In a suit, brought under a statute providing therefor, to recover damages for non- performance of a contract of affreightment, it is absolutely essen- tial that the complaint shall set forth facts to show that the case falls fully within the provisions of the statut e 3 (17) In Statutory Form of Complaint. In some jurisdictions forms of complaint, in actions against carriers, are prescribed by statute, and here it will be sufficient to pursue the statutory for M 4 b JOINDER OF COUNTS Carrier and Warehousema N In actions for loss or injury, counts against the defendant as a warehouseman may be joined with counts against it as a common carrieR5 The plaintiff claims of the defendant dollars, damages for the failure railroad companies, which divided freight pro rata among themselves according to the length of each road of which combination the railroad company sued was a member, and re- ceived the flour when it reached the line of its road, and transported the same to its destination, and refused to deliver it on demand to the plain- tiff held, that a demurrer to the com- plaint for want of sufficient facts did not present the question whether the other railroad companies united with defendant in the receipt and trans- portation of the flour and freight generally, or were partners and proper parties with it as defendants to the actio N Baltimore, etc, RCo v McWhinney, 36 Ind 436, 5 A M R Y Rep 312 1 Felder v Columbia, etc, RCo, 21 S Car 35; Southwestern RCo v Bryant, 67 Ga 212 2 Wyman v Chicago, etc, RCo, 4 Mo App 35 3 Steamboat Galena v Beals, 5 Wi S 91 So, in order to recover from a car- rier, which would not be liable ex- cept by a special statutory provision, the complaint must state all the facts necessary under the statute to con- stitute liabilit Y Hempstead v New York Cent RCo, 28 Barb ( N Y) 4 Rowland v Wallace, 81 Ala 238 Form of Complaint Alabama to deliver certain goods, viz: [here set them out], received by him as a common car- rier, to be delivered to the plaintiff at Defendant for a reward) which he failed to deliveRNot e If the injury complained of is the failure to deliver the goods by the time stipulated or within a rea- sonable time, or injury to the goods, it should be so state d A B, Attorney for the Plaintiff Code Ala 1886, p 793, form 15 Tennessee The plaintiff sues the defendant for - - dollars, as dam- p j} a reasonable time, or in good condition, or as the case may be), viz.: [here describe succinctly the goods], received by him as a com- mon carrier, to be delivered to the plaintiff at for a reward, which he failed to do (or by the time stipu- lated, or within a reasonable time, or damaged, as the case may be).

Autor of the post: Undefined

In an action for injuries Post Date: Fri, 25 Jul 2008 21:25:09 +0000
A B, Attorney for the Plaintiff M v Code Tenn, p 689, form 13 5 Whitney v Chicago, etc, RCo, 27 Wi S 327, 5 A M R Y Rep 291; Armstrong v Chicago, etc, RCo, 45 Min N 85 5 Plea or Answer A GENERAL ISSUE Actions ex Deiict O In actions ex delicto against the carrier the general issue is " not guilty;" 1 and it has been said that in this class of actions most matters of defense may be shown under the general issue, and for this reason it is seldom advisable to resort to a special ple A 2 Actions ex Contract U In actions ex contractu the general issue is " nonassumpsit ;" and this plea operates as a denial of the con- tract alleged in the declaratio N 3 Adding Count by Amendment. In an action against a railroad company, seeking to charge it as a common car- rier for the loss of goods, a count may be added by amendment charging it as a warehouseman ; but if the amend- ment is not filed until after the lapse of one year from the accrual of the cause of action (Code, 2619), the statute of limitations is available as a defens e Anniston, etc, RCo -v Ledbetter, 92 Ala 326 Amending to Show Liability as Ware- housema N Where a complaint alleges negligence on defendant's part, com- mitted in its capacity as carrier, and the evidence shows that it was com- mitted in its capacity as warehouse- man, the complaint may be amended to conform to the proof after the case has gone to the jur Y St Louis, etc, RCo v Dodd, 59 Ark 317 Where a declaration charges a rail- road company, as a common carrier, for loss of goods shipped over its line and destroyed by fire while in its depot awaiting delivery, it cannot be amended, after the cause of action has become barred by the statute of limi- tations, so as to charge the company for negligence as a warehousema N People v Kalamazoo, 35 Mich 227 1 M'Call v Forsyth, 4 W S (Pa) 181; Angell on Carriers, 451, Elwell v Grand Junction RCo, 5 M W 669 2 Hoyt v Allen, 2 Hill ( N Y) 322 English Statutory Provision as to Effect of Ple A In actions for tort againsj a carrier, the plea of not guilty will operate as a denial of the loss or dam- age, but not of the receipt of the goods by the defendant as a cariier for hire, or for the purpose for which they were receive d R16 Reg Ge N QB C p Exc H T T, 16 Viet R6; i E L B L App, Ixxi X South Carolina English Rule not Fol lowe d In case against a carrier, the defendant may show, under a plea of not guilty, that he did not occupy the relation of a common carrier to the plaintiff in the transaction out of which the action aros e Brown v Dunlap, 3 S Car 101 Illinois Contract Limiting Liability Provable under General Issu e To the extent that a carrier may make a valid contract in limitation of its common- law liability, such contract will be a matter of defense; and that defense may, in an action on the case, be given in evidence under the general issue, and need not be specially pleade d Coles v Louisville, etc, RCo, 41 111 App 607; Wabash, etc, RCo v McCasland, n 111 App 491 Where, in an action of case against a carrier, a special plea sets up a con- tract in which it was agreed that, in consideration of a reduced rate, of freight, any claim for damages which might accrue to the shipper should not be paid or sued for unless a claim for the loss should be made in writ- ing, sworn to, and delivered to the general freight agent of the company within five days of removal of the stock from the cars, and alleges a breach of such agreement held, bad as amounting to the general issue, and obnoxious to a special demurrer for that reaso N Wabash, etc, RCo v Black, ii 111 App 465 When sued in case for failing to properly care for live stock shipped, the company pleaded the general and two special pleas, setting up a writ- ten contract, and averring a breach thereof by the plaintiff Held, that sustaining a demurrer to one of such special pleas was no ground for com- plaint, where it appeared that the same matter was admissible in evi- dence under the general issu e Wa- bash, etc, RCo v Pratt, 15 111 App 177 3 Dale v Hall, I Wil S 281; Angell on Car, 455; Schouler on Bailments, English Statutory Provisions as to Effect of Ple A In actions on simple contract b SPECIAL PLE A Before filing a special plea, the pleader should satisfy himself that the facts therein set forth are not ad- missible under the general issu e If they are the plea will be bad as amounting to the general issu e 1 But an objection that a special plea is bad as amounting to the general issue must be taken by special demurreR2 When Special Plea Use d There are, however, many matters of de- fense which are not admissible under the general issue, and which, in order to be availed of, must be specially pleade d 3 against carriers for not delivering goods, the plea of nonassumpsit, or a plea traversing the contract or agreement alleged in the declaration, will operate as a denial of any ex- pressed or implied contract to the effect alleged in the declaration, but not of the breac H Reg Ge N QB C p Exc H T T, 16 Viet R6; i E L B L App, Ixxi X 1 Brind v t)ale, 2 M W 775; Wabash, etc, RCo v Black, n 111 App 465; Wabash, etc, RCo v McCasland, n 111 App 491; Cook v Scott, 6 111 333; Abrams v Pom- eroy, 13 111 134; White v Clayes, 32 111 325; Johnston v Ewing Female University, 35 111 518; Strader v Snyder, 67 111 404; Wiggins Ferry Co v Blakeman, 54 111 201 Where a railroad is sued for not properly carrying goods, and it pleads specially that its liability is limited by contract to its own line, and that it safely carried goods and delivered them to the next carrier in the route, the pleas are bad as amounting to the general issu e Illinois Cent RCo -v Johnson, 34 111 389 In assumpsit for goods lost, a plea alleged that when defendant re- ceived the goods plaintiff expressly agreed to accompany the cart in which they were carried and pro- tect them from loss or theft, and that by reason of his neglect and refusal to do so the goods were loSt Held, bad as amounting to the general issu e Brind v Dale, 2 M W 775 In case against a carrier for loss of goods, a plea alleged that the delivery and receipt of goods happened after the passing of 4 W M Iv, C 55, and at the time of the delivery plaintiff became and was a passenger; that the goods were delivered to be con- veyed with him as such passenger, and that no part thereof were articles of clothing of the plaintiff Held, that the plea was an argumentative tra- verse of the goods having been de- livered to be carried and of defend- ant's liability, and that it amounted to the general issu e Elwell v Grand Junction RCo, 5 M W 669 2 Cushman v Hayes, 46 111 155 See also Wabash, etc, RCo v Black, II 111 App 465; Wabash, etc, RCo v McCasland, n 111 App 491; Cook v Scott, 6 111 333; Abrams v Pom- eroy, 13 111 133 ; Brind v Dale, 2 M W 775 3 Accident A defense by a rail- way company, relying upon an in- evitable accident, must state all the facts which the company contends constitute such inevitable Accident Burns v Cork, etc, RCo, 13 IR C L R543 Exc H Misrepresentation of ShippeRUnder the plea of not guilty, it is not com- petent for the defendant to show that the plaintiff misrepresented the weight of the goods which the defendant agreed to carr Y The plea only operates as a denial of the loss or damage, and not of the receipt, of the goods by defendant, who should either plead the misrepresentation specially or traverse the acceptance of the goods for carriag e Webb v Page, i d L 531, 6 Scott N R951 Notice of Valu e In an action against a carrier for the loss of a parcel of more than ten pounds value, if he wishes to avail himself of the want of notice of value he must plead it speciall Y Syms -v Chaplin, 5 Dow L p C 429, 5 A d E L 634, 31 E C L 403 See also Baxendale v Great West- ern RCo, 38 L J QB 137, L R, 4 QB 247; Pianciani v London, etc, RCo, 18 CB 226, 86 E C L 226 Control of Vessel by Public Pilot. In an action for injuries to merchandise during transportation, a defense that at *he time the injuries occurred defendant's vessel was exclusively in C PLEA IN Abatement In an action against a carrier sued as a corporation^ plea in abatement by several persons admitted that they, " together with others," were doing business under the name by which they were sued, but denied that the carrier was a corporatio N The plea was bad for failure to set forth the names of the others with whom they were doing business, in order that the plaintiff might know whom to sue, if the plea should prove tru e 1 d ADMISSION S A plea of the general issue does not operate as an admission of immaterial fact S 2 In case for loss of goods a had arrived at a point near Canton, the commanding officer of her maj- esty's forces and the chief superin- tendent of the trade of her majesty's subjects, for lawful reasons, forcibly prevented the ship from proceeding to Canton, and by virtue of the au- thority in them vested prevented the delivery of the goods at Canto N Held, that the plea was bad for not sufficiently disclosing that the officers had authority to act in the manner al- lege d Evans v Hutton, 4 M g 954, 43 E C L 491 In case by L H for loss of goods, a plea that the contract of shipment was made in New York between de- fendants and L H Co; that L H made the contract; that he transacted business in New York under the name of L H Co; and that the said " Co" did not represent an actual partner, is ba d To bring the case within the statute which forbids trading in the name of a fictitious firm, the plea should aver that plain- tiff's transaction of business as L H Co related to the goods in questio N Hoyt v Allen, 2 Hill ( N Y) 322 Where a carrier contracts to carry upon the canals, dangers of canal navigation excepted, etc, a plea set- ting up such exception generally, without specifying the dangers, is ba d (Supreme Court, 1829) Wood- worth v McBride, 3 Wen d ( N Y) 227 1 American Express Co v Hag- gard, 37 111 465- 2 Bennion v Davison, 3 M W 179 In this case the declaration in assumpsit stated that defend- charge of a licensed pilot, in conse- quence of a regulation of the port of Liverpool, whose orders defendant was bound to obey, and that the ac- cident occurred through the pilot's negligence, is not available, it seems, unless specially pleade d Guiterman v Liverpool, etc, Steamship Co, 9 Daly ( N Y) 119 Illustrations of Sufficient Special Ple A In case for the loss of maps, defendant pleaded that at the time of their deliv- ery to him he notified plaintiff that he would not be responsible for loss or damage to the consignment unless insured for its value and paid for at the time of delivery; that defendant received the consignment for carriage only on these terms, and that it was not insured or paid foRHeld, suffi- cient.

Autor of the post: Undefined

Where a contract of shipment Post Date: Fri, 25 Jul 2008 21:14:55 +0000
Wyld v Pickford, 8 M W Where a declaration is framed on the comffion-law liability of defend- ants as common carriers, a plea set- ling up a special contract whereby plaintiff undertook all risk of loss or injury in loading and unloading, con- veyance, or otherwise, whether aris- ing from the negligence or the miscon- duct of defendants or their servants, and alleging that defendants did not undertake to forward the animals by any particular train, and were not re- sponsible for delivery of the animals within any certain time, and that any loss or injury caused by the delay in conveying and delivering the animals was a loss and injury within the mean- ing of the contract states a good de- fens e Bates v Great Western RCo, 24 U C QB 544 Illustrations of Insufficient Special Ple A A plea to an action of assumpsit, on an undertaking to carry and de- liver goods to plaintiff's agent at Can- ton, alleged that after the ship on which the goods were being carried ants were owners of a certain vessel; that plaintiffs caused to be shipped thereon certain merchandise, to be carried safely by defendants as owners of such vessel; that in con- sideration thereof and of certain plea of the general issue admits the competency of defendants tc be sued by the name given in the declaratio N 1 In an action for nondelivery a plea that the defendant never received the goods is an admission of nondelivery, and this fact need not be proved to entitle the plaintiff to judgment. 2 e GENERAL DENIA L Under the code system of pleading the effect of the general denial is simply to put in issue the material allegations of the complaint or petition ; 3 and under it the defend- ant can show such facts only as disprove the facts alleged, it being necessary to plead especially all matters in confession and avoidanc e 4 freight defendants promised to carry the merchandise safely, but that it was damaged through defendants' negligenc e Held, that ownership of the vessel was not admitted by the plea of non assumpserunt, as the ques- tion of ownership was immateria L Introducing Further Evidence to Rebut Admissio N If an answer, which de- nies negligence, admits facts which raise a presumption of negligence, and the apostles indicate that the question of negligence has not been fully entered into, and the claimant has relied upon the theory that the facts found did not make out a prima- facie case against him, he may be permitted to apply for leave to in- troduce further evidence in this re- gar d The Sydney, 27 Fed Rep 119 1 Moran v Portland Steam Packet' Co, 35 Me 55 2 Hot Springs RCo v, Hudgins, 42 Ark 485, 18 A M Eng RCa S 643- 3 See article ANSWERS IN CODE PLEADING, Vo L I, p 777 What may be Shown under General De- nia L The answer to a petition alleg- ing a delivery to and acceptance of certain plate glass by defendant for carriage, and an injury thereof by de- fendant's negligence, denied " each and every " of said averment S Held, that under the pleadings defendant might show that the package, though actually containing plate glass, was marked " rough glass," as such evi- dence shows that no such contract as the one sued on was made by the car- rieRDespatch Line v Glenny, 41 Ohio St 166 The complaint alleging a special contract by the defendant to carry to Chicago, and a breach of the con- tract, and the answer containing a gen- eral denial, the fact was available in defense that the injury complained of occurred after the property had passed beyond the defendant's termi- nu S Ortt v Minneapolis, etc, RCo, 36 Min N 396 Answer that Defendant has no Informa- tion When Ba d In an action against a carrier for injury to a shipment of cattle alleged to have been caused by the negligence of defendant's ser- vants, an answer which does not deny the injury charged, but merely alleges that defendant has not sufficient in- formation on the subject to form a belief, is ba d Civ Code, 113, which allows a denial that defendant has- sufficient information to form a belief concerning the facts alleged, if they be not presumptively within his knowledge, is not applicable, since i; is defendant's duty to know whethei its trains have been operated prop- erl Y Nashville, etc, RCo*, v Car- rico, 95 Ky 489 Joining Special Defense with General Denia L In an action for loss, defend- ant may plead as a special defense, in connection with the general denial, a special contract with the shipper, whereby the latter was to accompany the stock and care for it, and that his failure to do so was the cause of the los S The fact that the action was in tort does not prevent such defense from being pleade d Oxley v St Louis, etc, RCo, 65 Mo 629 4 See article ANSWERS IN CODE PLEADING, Vo L I, p 777 Claim not Made within Time Provided by Contra Ct In an action against a carrier for loss of goods shipped, the defense that the claim was not made within the time provided for in the bill of lading cannot, it seems, be set up under an answer merely denying the allegations of the declarations; such matter should be specially Waiver S It has been held* however, that if no objection is made at the trial that such mattersvare not specially pleaded, the objec- tion will be considered waive d 1 6 Replication or Repl Y Where the defense to an action for injury is special, as, for instance, nonpresentment of claim for dam- ages within the period required by the contract, the plaintiff should either demur or reply matter in avoidance if he wishes pleade d Central Vermont RCo -v Soper, 59 Fed Rep 879 Where a package is delivered to an express company for transporta- tion, and a receipt given which pro- vides that the company shall not be liable for loss or damage unless the claim therefor is made in writing within thirty days from the accru- ing of the cause of action, such con- dition cannot be enforced unless pleaded, as it is in the nature of the statute of limitation S Westcott v Fargo, 61 N Y 545 Reasonableness "of Stipulation should AppeaRIn an action for damages to live stock by the shipper, an an- swer setting up a stipulation that the shipper should give notice in writing, of his claim for damages to some agent of the company as a con- dition precedent to his right to re- cover damages, is bad if it does not also show that defendant had an agent so situated that the contract, to give notice to such agent, was rea- sonabl e Missouri Pac RCo v Harris, 67 Tex 166; Gulf, etc, RCo v Wilhelm, 3 Tex App Civ Ca S, 458; Galvesto Netc, RCo v Thompson (Tex Civ App, 1893), 23 S W Rep 930 Unusually Large Traffi C In an ac- tion for damages for failure to fur- nish cars for the transportation of cattle, it cannot be shown, under a general denial, that at the time com- plained of there was an unusual de- mand for cars; that all defendant's cars were in use; that defendant was unable to furnish cars on the day de- sired, but that it did so as soon there- after as it could, having due regard for the rights of other shippers who had demanded transportation at or before that ti Me Hence an answer stating these facts is not demurrable, notwithstanding an allegation in the complaint that defendant was able to furnish the cars at the time desired, as such allegation is not material and need not be prove d Pittsburgh, etc, RCo v Racer, 5 Ind App 209 Release of Shipping Contra Ct In an action for failure to deliver goods shipped, defendant cannot show, un- der a general denial, that plaintiff had released the contract of shipment; such fact should be specially pleade d Houston, etc, RCo v Harn, 44 Tex 628 Partial Los S In an action for fail- ure to deliver goods, it cannot be shown, under a general denial, that the loss was partial onl Y Houston, etc, RCo v Harn, 44 Tex 628 Striking out Improper Defens e In an action against a railroad com- pany for a breach of a contract to leave freight cars on a side track for the purpose of receiving and taking away freight, the defendant, in one count of his answer, alleged that the plaintiff had negligently permitted freight cars to stand upon the side track so near the main one that one or two collisions had taken place, and there was danger of others, and the plaintiff was unwilling to become re- sponsible for the injuries that might result from such negligenc e It was held that as this defense was not set up as a counterclaim or set-off, and was not stated as a defense in bar, it was properly stricken from the an- sweRAmsden v Dubuque, etc, RCo, 13 Iowa 132 Defense that Suit is for Another's Bene- fit. Where a contract of shipment of insured goods contains a provision to the effect that, if the carrier shall be rendered liable for damages covered by the insurance he may recover the amount from the underwriter, an answer to an action on such contract, averring that the underwriter agreed to pay the loss, and that the suit is for his benefit, is insufficient.

Autor of the post: Undefined

In an action against Post Date: Fri, 25 Jul 2008 20:56:24 +0000
Cin- cinnati, etc, RCo v Spratt, 2 Duv (Ky) 4 1 Central Vermont RCo v Soper, 59 Fed Rep 879 to test the defens e By joining issue he admits its complete- ness, if prove d 1 Iv ACTIONS FOE DELAY Form of Action and Partie S On principle, there can be no difference between this and the preceding class of actions as regards the form of action and the parties; and the discussion of these questions in the preceding subdivision of this article will be a sufficient guide to the pleader, as to the form of action to be brought and as to who shall be made partie S Allegations Duty to Carry in Reasonable Ti Me The Complaint, in an action for damages for delay in transportation, should allege the carrier's duty to carry in a reasonable ti Me* 1 Southern Express Co z Hunni- cutt, 54 Mis S 566 Illustrations of Sufficient Replicatio N Where a company is sued for injuries to live stock during transportation, and sets up a special agreement, to the effect that the owner was to give notice within forty days of his claim for injuries as a condition precedent to the right to sue, the effect of such defense is avoided by a replication showing that within three days after the injury the defendant's agent promised to pay the damages if plaintiff would put them in a rea- sonable sum; that he was misled by various promises to pay, until after the lapse of the forty days; and that during that time he acted under the belief that defendant meant to pay without suit. Gulf, etc, RCo v Trawick, 80 Tex 270 In an action against a common car- rier for the loss of a parcel, a replica- tion that the loss arose from the felonious acts of the defendants' servants, is a good answer to a plea, founded upon the Carriers Act, II Geo Iv I W M Iv, C 68, I, that the value exceeded ten pounds, and was not declared at the time of de- livery to the carrieRMetcalf v Lon- don, etc, RCo, 4 CB, N S 307, 93 E C L 307 New Assignment. In an action against a railway company for the loss of a package intrusted to them to carry, subject to the terms of a special notice by the company not to be responsible for articles of certain descriptions or of a certain value, unless entered and paid for accord- ingly, the declaration alleging a loss arising from the gross negligence of the company and the felonious acts of their servants, the company pleaded (except as to so much of the declara- tion as alleged that the loss arose from the gross negligence of the com- pany and the felonious acts of their servants) that the goods were within the description and of the value men- tioned in the notice, and that their nature and value were not declared at the time of their delivery to the compan Y The plaintiff newly as- signed, that he issued his writ and declared thereupon, for that, while the goods were in the custody and possession of the company as com- mon carriers, they were feloniously stolen by certain servants of the com- pany unknown to the plaintiff Held, that the new assignment was bad as applying to a portion of the declara- tion to which the plea was not ad- dresse d Butt v Great Western RCo, ii CB 140, 73 E C L 140, 20 L J C p 241 Admission S Where the defense to an action for injury to live stock is that plaintiff failed to give notice of his claim for damages within a cefr tain time, as required by the contract of shipment, a reply that the stipula- tion for notice was void amounts to no more than a demurrer, and the implied admission of the existence of the stipulation does not affect the general denial interposed by opera- tion of law to the matters pleaded in answeRNichols v Chicago g W RCo (Iowa, 1895), 62 N W Rep 769 2 Buckley v Great Western RCo, 18 Mich 121; Central RCo v Hasselkus, 91 Ga 382, 55 A M Eng RCa S 586 Allegation of Undertaking to Carry in Specific Ti Me Where the declaration alleges an undertaking to deliver in a specific time, but none to deliver in a reasonable time, evidence of what Failure to Carry in a Reasonable Ti Me It should also be alleged that the defendant failed to carry within a reasonable ti Me 1 Special Damage S Damages which may be presumed to result necessarily from the wrongful delay need not be stated ; 2 but to entitle the plaintiff to such damages as are not the natural conse- quence of the delay, or not of a character to be reasonably antici- pated by the parties at the time the contract of shipment was made, he must aver the same, together with the facts which would make them legally recoverabl e 3 would be a reasonable time is inad- missible, and no recovery can be had thereunder for failure to deliver in a reasonable ti Me Central RCo v Hasselkus, 91 Ga 382, 55 A M Eng RCa S 586 Amendment.

Autor of the post: Undefined

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