Laws

Even though there Post Date: Sat, 26 Jul 2008 1:30:22 +0000
538 Where a purchaser orders goods Steamship Co, 106 N Y 206; Dows v Cobb, 12 Barb ( N Y) 310 South Carolina Goodwyn v Doug- las, Cheves ( S Car) 174 Tennessee Carter v Graves, 9 Yerg (Tenn) 446 Texa S Houston, etc, RCo v Stewart, i Tex App Civ Ca S, 1246; Missouri Pac RCo v Smith, 84 Tex 348; Galveston, etc, RCo v Bar- nett (Tex Civ App, 1894), 26 S W Rep 782; Missouri Pac RCo v Scott, 4 Tex Civ App 76 Wisconsi N Hooper v Chicago, tt C, RCo, 27 Wi S 81 Canad A Brill v Grand Trunk RCo, 20 U C C p 440 Englan d Joseph v Knox, 3 Camp b 320; Dunlop v Lambert, 6 C L F 626; Moore v Wilson, i T R659; Davis v James, 5 BurR2680; Mead z/ South Eastern RCo, 18 W But see subdivision Where Consignee is OwneR" Although, generally speaking, where there is a delivery to a carrier, to deliver to a consignee, he is the proper party to bring the action; yet if the consignor made a special contract with the carrier, the special contract supersedes the necessity of showing the ownership in the goods; and the consignor, the person making the con- tract, may maintain the action, though the goods may be the goods of the consigne e" Dunlop v Lambert, 6 C L F 627 A consignor cannot maintain an ac- tion on the case against a carrier, for the loss or injury of the property consigned, without showing that he has a general or special right there- to, for without that he cannot claim to have been damnified; but he may, in all cases, maintain an action of assumpsit upon a contract to deliver the prop- erty safely, he having made the con- tract, and paid or become bound for the freight or carriag e Carter v Graves, 9 Yerg (Tenn) 446 Illustrations and Applications of Rul e A miller in Suffolk sold flour to the plaintiff, and, according to the usual course of business between them, consigned it to him in Kent, pay- ing the carriage by the Great East- ern Railway to London ; and that company delivered it to the South- bring the action has been affirmed, though he was not the owner of the consignment nor had he any interest therei N The right of action here is based on the contract of service implied from the delivery and receipt of goods for carriag e 1 Action Enures to the Benefit of the Owner or Consigne e If the consignor has no interest in the goods, and his right of action is based solely on priority of contract, an action by him for failure to carry and deliver safely to the consignee will enure to the benefit of the consignee or real owneRIn such case the consignor is consid- ered the trustee of an express truSt 3 (3) Where Consignor is a Married Woma N Where a married from the seller and gives no directions as to the mode of conveyance to him, the seller who pays the freight and delivers them to a carrier may main- tain an action against the carrier for their los S Goodwyn v Douglas, Cheves ( S Car) 174 A party who is buying grain, and who has agreed to furnish the means of transportation from the place of purchase to himself, may maintain an action against a railroad company for failure to transport grain according to contract, though he is not in fact the owner of the grai N Cobb v Illinois Cent RCo, 38 Iowa 601 Statute Requiring Suit by Eeal Party in Interest Effe Ct The consignor's right of action on the contract is not affected by a statutory provision re- quiring every action to be brought in the name of the real party in intereSt Hooper v Chicago, etc, RCo, 27 Wi S 81, 5 A M R Y Rep 302 1 Finn v Western RCo, 112 Mas S 528 " Prima Facie, the contract of service is with the party from whom, directly or indirectly, the carrier receives the goods for carriage; that is, with the consignoRHis obligation to carry safely and deliver to the consignees subjects him to liabilities for any fail- ure therein, which may be enforced by the consignees or by the real own- ers of the property, by appropriate action in their own names, indepen- dently of the original contract by which the service was undertake N Such remedies are not exclusive of the right of the party sending the goods to have his action upon the contract implied from the delivery and receipt of them for carriag e * * * When carrying goods from seller to pur- chaser, if there is nothing in the relations of the several parties ex- cept what arises from the fact that the seller commits the goods to the carrier as the ordinary and convenient mode of transmission and delivery, in execution of the order or agreement of sale, the employment is by the seller, the contract of service is with him, and actions based upon that contract may, if they must not necessarily, be in the name of the consigno R" Finn v Western RCo, 112 Mas S 2 Hooper v Chicago, etc, RCo, 27 Wi S 81; Southern Express Co v Craft, 49 Mis S 480 " The shipper is a party in interest to the contract, and it does not lie with the carrier who made the con- tract with him, to say, upon a breach of it, that he is not entitled to recover the damages, unless it be shown that the consignee objects; for, without that, it will be presumed that the ac- tion was commenced and is prosecuted with the knowledge and consent of the consignee, and for his benefit. The consignor or shipper is, by oper- ation of the rule, regarded as a trustee of an express trust, like a factor or other mercantile agent who contracts in his own name on behalf of his prin- cipa L" Hooper v Chicago, etc, RCo, 27 Wi S 81 Consignment under Fictitious Na Me The fact that the owner and shipper of property is doing business in the name of a firm, in violation of N Y Act of 1833, C 281, " to prevent per- sons transacting business under fictitious names, "and that the property is marked with the firm name, is no defense to an action by such owner against a railroad company for loss or damage to the property while being carrie d Wood v Erie RCo, 72 N Y 196, 28 A M Rep 125, affirming 9 Hun ( N Y) 648 woman delivers to a carrier for transportation property which be- longs to her exclusively and separately, an action for loss or in- jury thereto may well be maintained in her na Me 1 But there is a conflict of opinion as to whether she has a right to maintain such action where the property consigned is not her separate propert Y 2 1 Hawkins v Providence, etc, RCo, 119 Mas S 596 Question of Bight to Sue ; how Raise d If any doubt exists as to a married woman's right to sue for loss of her own property, delivered by her to a carrier for transportation, the ques- tion of her right to sue cannot be raised by motion to exclude her evi- dence, in which it appears that she is a married woman, but must be raised by ple A Quarrier v Baltimore, etc, RCo, 20 W Va 424 2 In Massachusetts this right is de- nie d Hawkins v Providence, etc, RCo, 119 Mas S 596, in which it was held that personal apparel furnished by a husband to his wife, or pur- chased by the wife by her husband's consent, with money given her by him from a fund formed by their joint earnings, remains the property of the husband, and that the wife cannot maintain an action against the carrier for the loss thereof In Illinois the question of absolute or legal ownership is regarded as im- materia L The fact that she is bailor and consignor is deemed sufficient to sustain the actio N Chicago, etc, RCo v Shea, 66 111 471 ; Great Western RCo v McComas, 33 111 186 3 Alabama Southern Express Co v Caperton, 44 Ala 101; South N Ala RCo v Wood, 72 Ala 451, 18 A M Eng RCa S 634 California, Webb v Winter, ICal417; Glidden v Lucas, 7Cal26; Scammon v Wells, 84Cal311 Connecticut Miner v Norwich, etc , RCo, 32 Con N 91; Moseley v Lord, 2 Con N 389 Illinoi S Merchants' Despatch Co v Smith, 76 111 542 Indiana Madison, etc, RCo v Whitesell, n Ind 55; Pennsylvania Co v Holderman, 69 Ind 18 Iowa Angle v Mississippi, etc, RCo, 9 Iowa 487 KentucKy Smith v Lewis, 3B Mo N (Ky) 229 Massachusett S Frank v Hoey, 128 Mas S 263; Rowley v Bigelow, 12 Pic K (Mas S) 308; Merchants' Nat Bank v Bangs, 102 Mas S 291; Foster v Ropes, in Mas S 10; Upton v Stur- bridge Cotton Mills, in Mas S 446 Minnesota McCauley v Davidson, 13 Min N 162; Dyer v Great Northern RCo, 51 Min N 345; Benjamin v Levy, 39 Min N N New York Price v Powell, 3 N Y 322; Ogden v Coddington, 2 E D Smith ( N Y) 320; Sweet v Barney, 23 N Y 335; Everett v Saltus, 15 Wen d ( N Y)474; Thompson v Far- go, 49 N Y 188, 44 How Pr ( N Y) 176; Green v Clark, 12 N Y 343; Fitzhugh v Wiman, 9 N Y 562; Krulder v Ellison, 47 N Y 36; Price v Oswego,etc, RCo, 58 Barb ( N Y) 606; Brower v Peabody, 13 N Y 121; Dows v Greene, 24 N Y 638; Dows v Perrin, 16 N Y 325 Ohio Straus v Wessel, 30 Ohio St 211 Pennsylvania Arbuckle v Thomp- son, 37 Pa St 170; Decan v Shipper, 35 Pa St 239 Tennessee W A RCo v Kelly, i Head (Tenn) 158; East Tennessee, etc,RCo v Nelson, I Cold W (Tenn) 272 Texa S East Line, etc, RCo v Hall, 64 Tex 615 Ver Mont Strong v Dodds, 47 Vt 348; Sawyer v Joslin, 20 Vt 172 Wisconsi N Congar v Galena, etc RCo, i7Wi S 477 United State S Grove v Brien, 8 Ho W (U S) 429, Lawrence v Min- turn, 17 How (U S) 100; Blum v The Caddo, i Woods (U S) 64 theless, be rebutted ; * and if overcome, the action may properly be brought in the name of the consignoR3 (2) Presumption Arising from Bill of Ladin g The mere fact that a person is named as consignee in a bill of lading is such pre- sumptive evidence of ownership in him, in the absence of any showing to the contrary, as will entitle him to su e 3 Special Agreement. Even though there be a special agreement be- tween the consignor and the consignee that the latter shall not become the absolute owner until the merchandise is inspected at the place of destination, the consignee may, nevertheless, sue for failure to deliver, if he holds bills of lading therefor and has paid drafts for the coSt 4 Canad A Young v Canadian Pac RCo, I Manitoba 205 Englan d Dawes v Peck, 8 T R330; Evans -v Marlett, i L d Ray M 271; Sargent v Morris, 3B Ai d 277; Fragano v Long, 4B C 219, 10 E C L 313; Tronson v Dent, 36 Eng L E Q 41; Coleman v Lam- bert, 5 M W 502; Gurney v Behrend, 3 E L B L 622, 77 E C L 622 Action for Use of AnotheRAn action for failure to deliver goods is prop- erly brought in the name of the con- signees alone, notwithstanding they are prosecuting the suit for the bene- fit of another whom they hold liable for the loss of the good S Mobile, etc, RCo v Williams, 54 Ala 168 1 Sweet v Barney, 23 N Y 335; Price v Powell, 3 N Y 322; Everett v Saltus, 15 Wen d ( N Y) 474; Law- rence v Minturn, I" How (U S) 100; Congar v Galena, etc, RCo, 17 Wi S 486; Smith v Lewis, 3B Mo N (Ky) 229; Southern Express Co v Caperton, 44 Ala 101; South N Ala RCo v Wood, 72 Ala 451, 18 A M Eng RCa S 634 2 Sweet v Barney, 23 N Y 335; Price v Powell, 3 N Y 322; Smith v Lewis, 3B Mo N (Ky) 229 3 Lawrence v Minturn, 17 How (U S) 100; Butler v Smith, 35 Mis S 457; Griffith v Ingledew, 6 S R(Pa) 429; Arbuckle v Thompson, 37 Pa St 170; Blanchard v Page, 8 Gray (Mas S) 289; Harrison v Hixson, 4 Blackf (Md) 226 " If we take the rule to be that an action against the carrier cannot be brought by a consignor, who has no beneficial interest in the goods, it still remains true that a presumption of such an interest in the consignee arises from a bill of lading which makes the goods deliverable to him or his assign S" Lawrence v Minturn, 17 How (U S) 107 Title does not Necessarily Pas S Where goods are shipped and a bill of lading is taken out in the name of the consignee and forwarded, the title to the goods is not thereby necessarily vested in the consignee absolutely; the intention of the parties must gover N If made for the purpose of passing title, the delivery of the bill of lading will have that effe Ct If there be no contract of purchase between consignor and consignee, or other party, the owner's title will not be diveste d Bonner v Marsh, xo Smed M (Mis S) 376 Suit in Admiralt Y The consignee named in a bill of lading, from the nature of the contract of a bill of lad- ing, has a right to sue in admiralty for any breach thereof McKinlay v Morrish, 21 How (U S) 355; House- man v Schooner North Carolina, 15 Pet (U S)49 Bill of Lading Deliverable to Consignor's OrdeRWherea consignor ships goods at his own risk, and indorses in blank a bill of lading, whereby they are made deliverable to his own order, and sends the bill so indorsed to A, whom he authorizes to fill up the blank and make the goods deliverable to himself or to such person as he may name, an indorsement by A, making the goods deliverable to B, has the same effect, to vest the property in B, as if the name had been inserted by the shippers by B's directio N Chand- ler v Sprague, 5 Met .

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(U S) 25; Watkins v Post Date: Sat, 26 Jul 2008 1:13:18 +0000
(Mas S) 306 See also Conard v Atlantic In S Co, I Pet (U S) 4 45- 4 Illinois Cent RCo v Cobb, 64 111 128 If, however, the drafts paid for are (3) Where Consignee has Made Advance S Where a consignee has made advances on a consignment, he has a lien thereon para- mount to all others, and may maintain an action in his own name against the carrier for loss or injury theret O 1 (4) Where Consignee Directs Mode of Shipment. Where a consignee orders goods of the consignor to be forwarded over a designated route, or by a particular mode of conveyance, the title passes on delivery to the carrier, and the consignee is the proper party to sue for loss or injury to the good S 2 And it has also been held that if the consignee orders goods to be sent by a carrier, even though he names no particular carrier, the property vests in the consignee immediately on delivery to the carrier, and the con- signee should sue for loss or injur Y 3 In no case, however, has it been held that the property passed to the consignee by the consignor's mere delivery to a carrier, the consignee having given no order whatever for the sendin g 4 (5) Where Consignee has no Interest or Privity of Contra Ct Where the consignee has no interest in the goods shipped 5 and drawn on general account, and not on any specific consignment, the con- signee has no such interest as will entitle him to su e Cobb v Illinois Cent RCo, 38 111 394; Bryans v Nix, 4 M W 775, i H H 480 1 Burritt v Rench, 4 McLean ( U S) 325; Valle v Cerre, 36 Mo 588 Where the consignee of goods shipped upon a railroad pays the draft drawn on him by the shipper and receives the bill of lading, to which the draft is attached, and sub- sequently purchases the goods from the owner, he thereby becomes the real party in interest, under the code, Rev Stat, 3462 And it makes no difference that the goods were de- stroyed before the absolute sale, as the property of the owner in them still continued and was the subject of trans- fer; and the transferee could maintain action for damages for their destruc- tion on the ground of such transfeRKirkpatrick v Kansas City, etc, RCo, 86 Mo 341, 27 A M Eng RCa S 51 A corn merchant whose goods were laden on board a vessel ob- tained receipts which stated that they v/ere deliverable to T's agent " in Dublin, in care for and to be shipped to plaintiffs at Liverpoo L" Thereafter he indorsed the receipts to plaintiffs, and drew a bill on them for the value of the goods, which plaintiffs accepted and paid when du e It was held that by virtue of such ac- ceptance title vested in the plaintiffs, and that they could maintain an ac- tion in regard theret O Bryans v Nix, 4 M W 775, i H H 480 2 Vale v Bayle, Cow P 294; Krul- der v Ellison, 47 N Y 36; People v Haynes, 14 Wen d ( N Y) 547 N of Rochester ordered goods of plaintiff in New York, to be sent them "via cana L" The goods were de- livered to defendants, common car- riers upon the canal, but they were lost on the wa Y It was held that title to the goods passed absolutely to the consignee, subject to the right of stoppage in transitu, and that N was the proper party to sue for the los S Krulder v Ellison, 47 N Y 36 3 Button v Solomonson, 3B p 582; Cooke v Ludlow, 2B p N R119; The Mary Susan, i Wheat. (U S) 25; Watkins v Paine, 57 Ga 50; Arnold v Prout, 51 N H 589; Gar- land v Lane, 46 N H 246; Woolsey v Bailey, 27 N H 217; Smith v Smith, 27 N H 252 4 Coats v Chaplin, 3 QB 483, 43 E C L 831, in which it was held that where a traveling man of M, a Lon- don tradesman, verbally ordered goods for him from plaintiff, a manufacturer at Paisley, but gave no order as to the sending of the goods, plaintiff alone could sue for a loss of the goods, caused by the negligence of a -carrier to whom he had delivered the goods to carry to M 5 Ogden v Coddington, 2 E D the contract of shipment has been made by the consignor, the consignee cannot maintain an action for loss or injur Y 1 (6) Where Consignee is OwneROf course, where the consignee is the actual owner of goods shipped, he may sue for loss or injury; 2 and there are quite a number of cases in which the right of the shipper to sue by virtue of the contract is ignored and the consignee held the only party entitled to sue, where the entire property in the consignment is vested in hi M 3 Here not Smith ( N Y) 317; Sargent v Morris, 3B Ai d 277; Coombs v Bristol, etc, RCo, 3 H N 510 1 Sargent v Morris, 3B Ai d 277; Coombs - U Bristol, etc, RCo, 3 H N 510 2 Baird v Daly, 57 N Y 236 In this case it appeared that plaintiff em- ployed C, who was the owner of a scow, to transport cattle and horses across the St Lawrence riveR C, with knowledge and privity of plain- tiff, employed defendant, who was the owner of a tug, to tow the scow across, and by the negligence of defendant some of the cattle were lost and others injure d The court held that, though the bailee might sue because of his special interest, plaintiff was also en- titled to sue because he was the owneRSee also Green v Clark, 12 N Y 343; Everett v Saltus, is|Wen d ( N Y) 474; Miami Powder Co v Port Royal, etc, RCo, 38 S Car 78, 55 A M Eng RCa S 688 Eelease of Title to Consigne e If goods, title to which remains in the consignor, are lost in transit, the con- signor may, if he chooses, and the con- signee assents thereto, release his title or claim to the consignee; and the latter may maintain an action to recover for the los S Ela v American Merchants' Union Express Co, 29 Wi S 611 3 Evans v Martlett, i L d Ray M 271; Blum v The Caddo, i Woods ( U S) 64; Potter v Lansing, I John S ( N Y) 215; Congar v Galena, etc, RCo, 17 Wi S 477; South N Ala RCo v Wood, 72 Ala 451, 18 A M Eng RCa S 634; Dutton v Solomon- son, 3B p 582; Krulder v, Ellison, 47 N Y 38; Denver, etc, RCo v, Frame, 6 Colo382, 18 A M Eng RCa S 637; Dawes v Peck, 8 T R330 But seeB (2) Where Consignor Makes Contract of Shipment, supr A Where a quantity of corn is deliv- ered to a railroad company for trans- portatio Nthe consignee having bought it and paid for it, he is the proper party to sue for its nondelivery, and not the consignor from whom he bought it.

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Nor can any Post Date: Sat, 26 Jul 2008 0:58:23 +0000
South N Ala RCo v Wood, 72 Ala 451, 18 A M Eng RCa S 634 Reason against Rule as'Sta'ie d " The contract to deliver the goods, having been made with p, must confer on him a right of action for their non- deliver Y It would be without ex- ample to deny a party to whom an express promise is made, whether as trustee or in his own right, a remedy for its violation; this would produce the singular case of a party's having a right to break an engagement, with- out responsibility to him with whom it is made, merely because it is pos- sible some other person may have a remedy against him; or, what would be more strange, it would make the very act which consummates the bar- gain between the shipper and master that is, the delivery destroy the remedy of the former on the contra Ct To whom the goods belong is of no importance if it be once conceded (which cannot becontroverted)that the right of property may be in one, while another, by express agreement, may have a remedy for some negligence or misconduct in relation to it. What- ever, therefore, may have been the right of the consignees in this in- stance,B cannot contest that of the plaintiff, founded, as it is, on his own written agreement. Nor can any one be injured by a right of action for the same wrong subsisting in different persons at the same time (which, how- ever inconvenient, must sometimes happen), as a recovery by one will always bar the other's clai M But a right to sue the master is not only matter of express contract here; but, were it necessary or proper to look beyond the agreement itself, I should say that it was a valuable one, con- even the consignor's right of stoppage in transitu is considered to affect the question of parties, and the consignor, in making the contract of affreightment, is deemed merely an agent of the con- signee, although the latter may be a stranger to the carrieR1 d WHERE SHIPPER is BOTH CONSIGNOR AND CONSIGNE e Shippers in control of merchandise who make the contract for its transportation, and are both consignors and consignees, will be assumed, in the absence of proof to the contrary, to have suffi- cient title and right to maintain an action against the carrier for loss or injury to the property during transportatio N* e PARTY HAVING SPECIAL PROPERTY in Genera L It is a well- settled rule that a party having a special property or interest in the goods consigned, or a beneficial interest in the performance of the contract, is entitled to maintain an action for their loss or ferred on the plaintiff by the bill of lading (not one of which he held merely as trustee), and which we ought not to deprive him of under an idea of the owaers being changed as soon as the goods are put on boar d That the plaintiff had a right of stop- ping them in transitu, in case of the bankruptcy of the consignees, is con- cede d From this will necessarily fol- low the right of suing the master in the Game event, in case of a delivery to the consignees after notice not to make it, or for an indemnity for any misconduct on his part.

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A Co, forwarding Post Date: Sat, 26 Jul 2008 0:41:42 +0000
* * * To de- termine in whom the right of action is, it is better to look to the party to whom the promise is made than to the person from whom the consideration may procee d" Per Livingston, J, dissenting in Potter v Lansing, I John S ( N Y) 227 1 Blum v The Caddo, I Woods ( U S) 64; Gwyn v Richmond, etc, RCo, 85 N Car 429, 6 A M Eng RCa S 452; Dawes v Peck, 8 T R330 Goods bought and paid for were de- livered to a railway company, whose bill of lading was executed to the ven- dor, acknowledging the receipt of the goods to be conveyed to the vende e Held, that the contract for transporta- tion was, in legal effect, with the ven- dee, and the company was liable to him for nondelivery of the good S In such case the title vests in the vendee purchaser, and the right of action against the carrier is in the purchaser himself Gwvn v Richmond, etc, RCo, 85 N Car 429, 6 A M Eng RCa S 452 This Doctrine is Extended not only to cases where there was no contract be- tween the consignor and carrier other than that implied from a delivery of the goods for carriage, Gwyn v Rich- mond, etc, RCo, 85 N Car 429, 6 A M Eng RCa S 452; Blum v The Caddo, i Woods (U S) 64; but also to cases where there was a special contract of carriage in writing be- tween the consignor and carrier, Pot- ter v Lansing, i John S ( N Y) 217 2 Swift v Pacific Mail Steamship Co, 106 N Y 206 When Considered Both Consignor and Consigne e Where it appears from the complaint, in an action for an alleged breach of a contract to carry cattle, that the consignors were the owners of the cattle, and no consignee is named in the contract of carriage, it will be presumed that the shipment was to be made to the consignor S Pennsylvania Co v Clark, 2 Ind App 146 3 Illinois Cent RCo v Miller, 32 111 App 259; Illinois Cent RCo v Schwartz, 13 111 App 490; Southern Express Co v Caperton, 44 Ala 101; Houston, etc, RCo v Stewart, I Tex App Civ Ca S, 1247; Denver, etc, RCo v Frame, 6 Colo382, 18 A M Eng RCa S 637; Thompson v Fargo, 44 How Pr ( N Y Ct App) 176; Sargent v Morris, 3B Ai d 277; White v Bascom, 28 Vt 268; Little v Fossett, 34 Me 545; Steam- boat Co v Atkins, 22 Pa St 522 Mere Borrower Cannot Su e Suit for the destruction of a picture by a car- rier to whom it was delivered for FactoRThus, if the consignee has a special property in the goods as factor, he has such an interest in the shipment as will entitle him to maintain an action for loss or injury theret O 1 Baile e Where the consignor is bailee of the goods shipped, he may bring suit for loss or injury to the good S 8 shipment was brought by the sister of the owner and consigne e It ap- peared that he had permitted her to keep the picture until called for, and that if it was not called for it was to be her propert Y Held, that she was a mere borrower, without general or special property, and that she could not maintain the actio N Lockhart v Western, etc, RCo, 73 Ga 472 1 Houston, etc, RCo v Stewart, i Tex App Civ Ca S, 1246; Bos- ton, etc, RCo v Warrior Mower Co, 76 Me 251; Wolf v Missouri Pa C RCo, 97 Mo 473, 37 A M Eng RCa S 715 Compare Walter v Ross, 2 Wash (U S) 283 Where a mower company consigned and forwarded a lot of mowing-ma- chines to one d, under a contract, by the terms of which d was to pay freight on them and sell them for a specified commission, and account to the company therefor at a specified price, it was held that the contract did not change the title to the ma- chines, but that d had such a special property in the machines as to main- tain an action against the carrier for damages to the property sustained by himself, and also for such injuries as accrued to the mower company as general owner S Boston, etc, RCo v Warrior Mower Co, 76 Me 251 Factor a Trustee of an Express TruSt A factor for the consignor of goods, who has no interest in the goods be- yond his lien for commissions, but who is the consignee in the bill of lading, is a "trustee of an express trust," within the meaning of the Missouri statute, and may, when he has contracted with the carrier for the delivery of the goods to himself, maintain an action in his own name for their wrongful delivery to anotheRWolfe v Missouri Pac RCo, 97 Mo 473 37 A M Eng RCa S 715 Conflicting Directions as to Shipment. Where a railroad company receipted for goods to be shipped to factors at the place of destination, but the ship- per signed a declaration in which the goods were mentioned as being con- signed to the factors' principals, and the goods were so shipped, it was held that the factors, never having come into the possession of the goods, had no lien thereon, and could not maintain an action against the carrier in respect theret O Clark v Great Western RCo, 8 U C C p 191 Bankruptcy of Factor before Acquiring Possessio N If a factor accepts bills drawn by his principal upon the faith of consignments agreed to be made by the principal to the factor, and both of them become bankrupts before a cargo consigned comes in possession of the factor, his assignees have no property in such cargo, and cannot recover the price of it against the as- signees of the principal if the latter assignees have sold it and received the purchase -mone Y Kilnoch v Craig, 3 T R783 2 Freeman v Birch, i N M 420, 3 QB 492, 43 E C L 835; Nicolls v Bastard, 2 C, M R659; Great Western RCo v McComas, 33 111 187; Elkins v Boston, etc, RCo, 19 N H 337; Murray v, Warner, 55 N H 549; White v Bascom, 28 Vt 268; Moran v Portland Steam Packet Co, 35 Me 55; Dows v Cobb, 12 Barb ( N Y)3i O Plaintiff, a laundress at Hammer- smith, delivered laundry to a carrier for transportation to the owner at London, and the goods were lost in transit U Held, that she was entitled to sue for the los S Freeman v Birch, i N M 420, 3 QB 492, 43 E C L BailoRThough this right is clearly established, the bailor is not neces- sarily excluded from bringing an ac- tion if he chooses to anticipate the bailee in so doin g The rule is that either the bailor or the bailee may sue, and whichever first obtains damages, it is a full satisfactio N Elkins v Boston, etc, RCo, 19 N H 337; Nicolls v Bastard, 2 C, M R659; Murray v Warner, 55 N H 549; White v Bascom, 28 Vt 268 Agent So also an agent who had consigned a package of money to his principal was held entitled to sue for its los S 1 General OwneRIn all these cases, however, the general owner also has the right to su e 2 Effect of Recover Y But a recovery by one constitutes a bar to an action by the otheR3 / UNDISCLOSED PRINCIPA L Though an agent makes a con- tract for the transportation of goods, without disclosing the fact that he is acting merely as agent, his principal is entitled to sue the carrier for loss or injury to the good S 4 1 Southern Express Co v Caper- ton, 44 Ala 101 Forwarding Merchants who have Paid Freight. A Co, forwarding mer- chants to Philadelphia, paid freight from New York to Philadelphia on goods which were in transit from New York to Cincinnati, and they delivered the goods to the defendants, the Bal- timore and Philadelphia Steamboat Company, to be conveyed to Balti- more and there delivered to the Cum- berland Railroad Company for car- riage to Cumberland, there to be de- livered to the agents of the plaintiffs for carriage in the line of their desti- natio N Held, that A Co could maintain assumpsit on the contract against the defendants for damage to the goods whilst under their charge, and recover the entire amount of the loss for the benefit of themselves and the owners of the goods, especially as the latter were parties to the rec- ord and precluded from further clai M Steamboat Co v Atkins, 22 Pa St 522 2 Illinois Cent RCo v Miller, 32 111 App 259; Illinois Cent RCo v Schwartz, 13 111 App 490; South- ern Express Co v Caperton, 44 Ala 101; Denver, etc, RCo v Frame, 6 Colo382, 18 A M Eng RCa S 637; Green v Clark, 12 N Y 343; Steamboat Farmer v McCraw, 26 Ala 189; Elkins v Boston, etc, RCo, 19 N H 337; Murray v Warner, 53 N H 549; White v Bascom, 28 Vt 268; Nicolls v Bastard, 2 C, M 3 Denver, etc, RCo v Frame, 6 Colo382, 18 A M Eng RCa S 637; Illinois Cent RCo v Miller, 32 111 App 259; Illinois Cent RCo v Schwartz, 13 111 App 490; Southern Express Co v Caperton, 44 Ala 101; Murray v Warner, 55 N H 549; Steamboat Farmer v McCraw, 26 Ala 189; White v Bascom,, 28 Vt 286; Green v Clark, 12 N Y 343; Nicolls v Bastard, 2 C, M R659 4 Ames v First Division, etc, RCo, 12 Min N 412; Elkins v Boston, etc, RCo, 19 N H 337; New Jersey Steam Nav Co v Merchants' Bank, 6 How (U S) 344; Sanderson v Lam- berton, 6 Bin N (Pa) 129 See also Taintor v Prendergast, 3 Hill ( N Y) 72; Ford v Williams, 21 How (U S) 287; Sims v Bond, 5B A d 389, 27 E C L 97; Higgins v Senior, 8 M W 834 Instance S In an action on a con- tract of affreightment to recover for specie lost by the burning of defend- ant's steamer, it appeared that one H was engaged in the business of carry- ing parcels for hire, and for that pur- pose had made an arrangement with respondents whereby he was allowed the privilege of transporting such par- cels by their steameRA package of money belonging to libellants was de- livered to H for transportation, and for that purpose he placed it in the respondents' hand S The court said: " Under these circumstances the con- tract between H and the respondents for the transportation of the specie was, in contemplation of law, a con- tract between them and the libellants, and although made in his own name, and without disclosing his employers at the time, a suit may be maintained directly upon it, in their name S" New Jersey Steam Nav Co v Merchants' Bank, 6 How ( U S ) 379 Where plaintiff's agent placed plain- tiff's coat in a bundle with his own coat, and delivered it to defendants for transportation, without disclosing plaintiff's name, plaintiff was entitled to sue defendants for the loss of the coat.

Autor of the post: Undefined

Short v Simpson, chase money Post Date: Sat, 26 Jul 2008 0:30:53 +0000
Elkins v Boston, etc, RC O 19 N H 337 g INDORSEE OR ASSIGNEE OF BILL OF LADING At common La W Bills of lading stand in the place of the goods they repre- sent, and delivery or indorsement of them transfers the right of property i N the goods, but not in the contract itself, so as to enable the indorsee to maintain, at common law, an action on it in his own na Me 1 It would therefore follow that, in the ab- sence of a statute making the bill of lading negotiable, the in- dorsee or assignee cannot sue thereon in his own name, but must sue in the name of the assignor, for his us e 2 Under statute S In many jurisdictions bills of lading are negotiable by express enactment, and assignees or indorsees thereof may bring action on the M 3 It must be borne in mind, though, that the indorsee or assignee acquires no other or greater rights than 1 Baltimore, etc, RCo v Wil- the goods shall have passed by such kens, 44 Md n; Thompson v Dom- iny, 14 M W 403, 15 L J Exc H 320; Howard v Shepherd, 9 CB 297, 19 L J C p 249; Knight v St Louis, etc, RCo, 141 111 No 2 Knight v St Louis, etc, R' Co, 141 111 no, affirming 40 111 App 471 indorsement, has transferred to and vested in him all rights of suit, and he is subject to the same liabilities, in respect to such goods, as if the con- tract in the bill of lading had been made with himself The Freedom, L R, 3 p C 594 24 L T, N S 452 3 The Figlia Maggiore, L R, 2 See also The Helene,B L 415, 4 Ad M 106, 37 L J Ad M 52; 18 L T, N S 532; The Freedom, 22 L T, N S 175; The Felix, 37 L J Ad M 48, 17 W R102, 18 L T, N S 587, L R, 2 Ad M 273; Robinson v Memphis, etc, RCo, 9 Fed Rep 129; Haas v Kan- sas City, etc, RCo, 81 Ga 792, 35 A M Eng RCa S 572; Shaw v St Louis Merchants' Nat Bank, 101 U S 557; Merchants' Bank v Union R, etc, Co, 69 N Y yjy* affirming 8 Hun ( N Y) 249; Tiedeman v Knox, 53 Md 613 In a suit for damages to cargo, and Moore p C C, N S 70 Effect of Indorsement over to Third Person, under English Statut e Un- der 18 19 Viet, C in, $ i, the rights and liabilities of the indorsee pass from him by indorsement over to a third perso N Smurthwaite v Wil- kins, ii CB, N S 842, 31 L J C p 214; 10 W R386, 5 L T, N S 842 Effect of Beindorsement. Where a consignor indorses in blank and de- posits with a banker, to secure ad- vances, a bill of lading, by which for improper delivery by the con- goods are deliverable to order or as- signees, who were also assignees of signs, and the bill of lading is rein- the bills of lading, it was held that dorsed and redelivered to the con- they had a personal standing both as signor on payment of the sum loaned, to negligence and to breach of con- he is placed in the same position to- tra Ct The Freedom, 22 L T , N S, wards the carriers as he occupied be- A bill of lading had been indorsed to p Co, who had agreed to sell fore indorsing the bill of lading, and may sue them for a breach, whether such breach occurred after or before the cargo toB Co, but the pur- the reindorsement. Short v Simpson, chase money had not been pai d Held, I H R181, L R, I C p 248, 12 that p Co were proper parties to JuR, N S 258, 35_ L J C p 147 sue in respect of a breach of contract for delivery of the carg O The Felix, 37 L J Ad M 48, 17 W R102, 18 L T.

Autor of the post: Undefined

Plaintiff indorsed the bills Post Date: Sat, 26 Jul 2008 0:14:27 +0000
, N S 587, L R, 2 Ad M 273 The English Statut e By 18 19 Viet, C in, i, the consignee of goods named in a bill of lading, or the indorsee of a bill of lading to whom Action against Vessel by Assigne e Under the Minnesota statute author- izing " any person " who has a claim against a vessel to bring an action against it by name, the assignee of any such claim may maintain the ac- tion in his own na Me Reynolds v Steamboat Favorite, 10 Min N 242 the assignor had, since, by the transfer, cnly such title as the transferrer had at the time passe S 1 / / INSURANCE COMPANIES At La W Where goods shipped are insured, and loss or injury occurs, a payment by the insurance company for the loss or injury sustained works an equitable as- signment of the claim against the carrier ; but an action can only be brought in the name of the insurer as trustee, or to the use of the insurance compan Y 2 In Admiralty the rule as to parties is different, and, as in equity, the suit may be brought in the name of the insurer, as being the real party in intereSt 3 I JOINDER OF PARTIE S Where one contract of shipment is made in behalf of several owners, a joint action may be main- tained by them for a los S If there are a joint contract and a joint consideration, it is immaterial that the plaintiffs have a sepa- rate interest in the subject-matTer 4 If one of two or more joint 1 Dickson v Merchants' Elevator Co, 44 Mo App 498; Alabama Nat Bank v Mobile, etc, RCo, 42 Mo App 284; Hunt v Mississippi Cent RCo, 29 La An N 446; Haas v Kansas City, etc, RCo, 81 Ga 792, 35 A M Eng RCa S 572 But see The Emilien Marie, 32 L T, N S 435, 44 L J Ad M 9 If a shipper takes a bill of lading to himself as consignee and the car- rier delivers the goods to another, with the shipper's consent, but without sur- render of the bill of lading, a subse- quent assignee of the bill of lading, though acquiring it without notice and for value, has no recourse against the carrieRAlabama Nat Bank v Mobile, etc, RCo, 42 Mo App 284 2 Gales v Hailman, n Pa St 515; Peoria M F In S Co v Frost, 37 HI- 333! ^Etna In S Co z Hannibal, etc, RCo, 3 Dil L (U S) i; Mobile, etc, RCo v Jurey, in U S 584, 16 A M Eng RCa S 132 See also Texas, etc, RCo v Levi, 59 Tex 677; Hart v Western RCo, 13 Met (Mas S) 99; Connecticut Mut L In S Co v New York, etc, RCo, 25 Con N 265; Bean v Atlantic, etc, RCo, 58 Me 82; Rockingham Mut F In S Co v Bosher, 39 Me 253; Mason v Sainsbury, 3 Dou g 61; 26 E C L 36; Clark v Blything, 3 d R489 Compare Swarthout v Chicago, etc, RCo, 49 Wi S 625; Connecticut F In S Co v Erie RCo, 73 N Y 399 Principle on which Recovery Allowe d The principle upon which, in any case, an insurance company is permitted to recover against a party whose wrong- ful act has caused the loss which such company has been compelled to pay, is not based upon the idea of a direct legal right of the company against the wrongdoer, but upon the equitable doctrine of subrogation, under which it succeeds to, and is entitled to, a ces- sion of all the means of redress held by the party indemnified, against the party whose act has caused the los S And this right can only be enforced in the name of the party taking out the insuranc e Connecticut Mut L In S Co v New York, etc, RCo, 25 Con N 265 Insurance Company not a Party Plain- tiff An allegation, in a petition against a carrier to recover fora dam- age to goods in shipment, that the suit is for the use of an insurance company, does not make it the suit of the insur- ance company; the averment is proper to protect the interest of the insurance company, but does not make that com- pany plaintiff East Line, etc, RCo v Hall, 64 Tex 615 3 The Sydney, 27 Fed Rep 119; Fretz v Bull, 12 How (U S) 466 4 Metcalfe v London, etc, RCo, 4 CB, N S 307, 93 E C L 307 A box containing goods, some of which were the property of A and the rest the property of B, was de- livered on their behalf by a third per- son at a railway station for transpor- tatio N The box was addressed to A, and was received by him at his destination, and he paid the freight. Held, a joint bailment in respect of owners or partners makes the contract of shipment, he may sue alone for loss or injur Y 1 Nevertheless, joint owners may join in an action for loss or injury to a consignment, though the contract of shipment was made out in the names of two of them only the joint ownership of the other plaintiff or plaintiffs being unknown to the carrieR8 which a joint action might be main- tained by A and B for loss of the good S Metcalfe z London, etc, RCo,4 CB, N S 307,93 E C L 307 Several Plaintiffs Having Several Causes of Action Under English Statut e By virtue of Order 16, authorizing the joinder, as plaintiffs, of all persons in whom the right to any relief claimed is alleged to exist, whether jointly, separately, or in the alternative, and a judgment for any one or more of them found entitled to relief; and Order 18, providing that the plaintiff may unite in the same action several causes of action (but if it appears to the court that any of such causes of action cannot be conveniently tried or disposed of together, the court or judge may order separate trials of any of such causes of action)' the sev- eral shippers of different shipments of cotton delivered to the same vessel for carriage to the same place may join in an action against the carrier, on their respective bills of lading, for damages for short deliverie S Hannay v Smurthwaite (1893), 2 QB 413 In Admiralt Y Where several par- ties ship goods by the same vessel, under separate contracts of affreight- ment, and the goods are injured by the same disaster, they may unite in filing a libel to recover the damages thereby sustaine d Their right to join is within the reason of the rule laid down in collision and other cases, to prevent multiplicity of suits resting on a common groun d Sun Mut In S Co v Mississippi Valley Trans P Co, 14 Fed Rep 699; The Queen of the Pacific, 61 Fed Rep 213 Joinder of Consignor and Consigne e Plaintiff shipped goods by defendant on bills of lading, describing them as shipped by plaintiff, to be delivered to 's order or his assigns, he or they paying freight. Plaintiff indorsed the bills of lading to the parties to whom he had sold the goods, and the con- signees paid the drafts drawn on them for the price and, the goods having been injured in transit, made claims upon plaintiff for the pric e Plaintiff having sued for the damages was nonsuited for want of intereSt The court, withoutdeciding as to plain- tiff's right of action, set aside the non- suit and directed a new trial, with leave to plaintiff to join, as coplaintiffs, any or all of the consignees or in- dorsees of the bills of lading, the evi- dence already given to stand, with any additions the party might desire, reserving all cost S Hately v Mer- chants' Despatch Co, 2 O Rt.

Autor of the post: Undefined

Walston v Myers, 5 Jones Post Date: Fri, 25 Jul 2008 23:59:03 +0000
Rep 385 1 Missouri Pac RCo v Smith, 84 Tex 348; Taylor v Steamboat Robert Campbell, 20 Mo 254; Texas, etc ,RCo v Klepper (Tex Civ App , 1893), 24 S W Rep 567 But see Swift v Pacific Mail Steamship Co, 106 N Y 206, from which a contrary rule might be inferre d This action was for breach of a contract to carry whale oil, and it was objected that certain sea- men were joint owners with the ship- pers and should have been joine d After reviewing the evidence, the court said: " It is more reasonable to suppose, from such evidence, that the seamen were simply interested in the proceeds of the oi L * * * We are therefore of opinion that the seamen were not necessary parties to the actio N" Express Statutory Authority for Suit by Contracting Partie S Under Mans- field Ark Di g, 4935, which provides that a person in whose name a con- tract is made for the benefit of an- other may sue, without joining with him the person for whose benefit the suit is prosecuted, a shipper in whose name alone the bill of lading is made out may sue in his own name alone for damage to the goods, though other persons are part owners of the good S Cantwell v Pacific Express Co, 58 Ark 487 Action by Tenant in Common against Cotenant. One tenant in common of a personal chattel may maintain an action against his cotenant, by whom such chattel was received as a common carrier, and by whose negligence it was destroye d Herrin v Eaten 13 Me 193 Consignment to One of Two Owner S In case of a consignment to one of two joint owners, there is a conflict of authority as to whether the one to whom the consignment was made can sue alone for loss or injur Y This point has been ruled both way S 1 3 Parties Defendant A MERE SERVANT OR Agent The gen- eral rule is that an action for loss or injury must be brought against the carrier, and not against a mere servant or Agent* There are, however, a few well-recognized exception S Where Servant Receives Rewar d If the property is delivered to the servant to carry for his own gain, and not for the master's profit, the servant, and not the master, is' the party to be sued for the los S 3 Where Transportation is without the Scope of Carrier's Busines S Again, if property should be intrusted for transportation to a servant not authorized to receive it by the ordinary business of his employees, and they are not entitled to a share of the profits, they cannot be sued for loss or injur Y 4 Master of Vesse L The most important exception to the above rule is in the case of the master of a vesse L Where loss or injury occurs during transportation, either he or the owner may be sued, at the option of the plaintiff 5 Here the master as well as the 1 In Alabama the person to whom the goods are shipped may sue alon e Southern Express Co v Armstead, 50 Ala 350 In Texas the owners must joi N Mis- souri Pac RCo v Rushin, 3 Tex App Civ Ca S, 317 2 Williams v Cranston, 2 St Ark 82, 3 E C L 326, which was an ac- tion of case against the driver of a stage-coach for loss of a parce L It did not appear that upon the delivery of the parcel any contract had been made for a reward to be paid for the conveyance, and the court (by Lord Ellenborough) said: "If the defend- ant could be considered as having taken the watch to be carried on his own account, for a reward to be paid to him, he would be liable, although he acted in fraud of his masTer If it could be shown that he had been in the habit of carrying parcels for hire the case would certainly be al- tered, but being the mere servant, it cannot be inferred that he took the parcel to be carried for hire without further proof" 3 Butler v Basing, 2 C p 613, 12 E C L 287 4 Citizens' Bank v Nantucket Steamboat Co, 2 Story (U S) 34; Shelden v Robinson, 7 N H 157 See also Elkins v Boston, etc, RCo, 23 N H 275 5 Patton v Magrath, i Rice ( S Car) 162; Boson v Sandford, i Sho W 161 ; Morse v Slue, i Mo d 85 ; Priestly v Fernie, n Ju R, N S 813, 34 L J Exc H 173 Effect of Special Contra Ct The rule that either owner or master may be sued, is subject to the qualification that if there is a special contract with the owner the master is not liable, and vice -vers A Ba C AbRActionsB; Marsh, on In S 241; i Chit, on Pldg S (i6th A M e d) 35^; Angell on Ca R 518 Undisclosed Charter Party Effe Ct The plaintiffs were assignees, for valu- able consideration, of bills of lading for one thousand barrels of oil-cake shipped on board the Figlia Maggiore, at New York, and which the master had agreed " to deliver in like good order and condition at the port of Londo N" The vessel was at the time under a charter party, of which the shippers were ignorant, the master having put up the ship as a general shi P The oil-cake was stowed with hogsheads of tobacco, oaken staves being placed between the M A suit having been brought by the assignees of the bills of lading against the shipowner for owner is regarded by the law as a common carrieR1 The reason for the rule is that it is necessary to confide largely in the honesty of the master, and to give great opportunity to commit frauds which it would be impossible to trac e 2 Joinder of Master and OwneRThe liability of the master, however, is distinct from that of the owner ; and while the former is liable to precisely the same extent, and in the same form of action, as the latter, each is liable in a different character and on a different ground, and they cannot be joine d 3 b SUIT IN RE M Where a consignment is lost or injured damage suffered by the oil-cake on the voyage held, that as the vessel had been put up as a general ship, and as they had no knowledge of the char- ter party, the owner was the proper person to be sue d The Figlia Mag- giore, L R2 Ad M 106, 37 L J Ad M 52, 18 L T, N S 532 Judgment against One Bars Suit against OtheRSeparate actions can- not be maintained against the master and the owner of a ship for the same cause of actio N Though the plaintiff may elect to sue either, he cannot, after he has sued the one to judgment, maintain another action against the otheRPriestly v Fernie, n Ju R, N S 813, 34 L J Exc H 173 Exception North Carolina In this state, an action having been brought against the owners and the master of a steamboat jointly, the court held that the master was not a common carrier, but a mere servant of the owner, and that the master could not be made liable without proof of negli- gence or unskilfulness on his part. Walston v Myers, 5 Jones (N Car) 177 1 M'Clures v Hammond, i Bay ( S Car) 99; Patton v Magrath, i Rice ( S Car) 162; Bell v Reed, 4 Bin N (Pa) 27; Schieffelin v Harvey, 6 John S ( N Y) 170; Watkinson v Laughton, 8 John S ( N Y) 213; Elli- ott v Rossell, 10 John S ( N Y) i; Laveroni v Drury, 8 Exc H 166; Gar- rison v Memphis In S Co, 19 How (U S) 315; Hastings v Pepper, n Pic K (Mas S) 40 2 Elliott v Rossell, 10 John S ( N Y) 3 i- "The general doctrine is that the master must make good the loss or damage accruing to the goods which he undertook to carry safely for hir e * * * The rule is in furtherance of the general policy of the marine law, which holds the master responsible, as a common carrier, for accidents and all causes of loss not coming within the exception in the bill of ladin g It takes away all temptation to withhold a de- livery of the goods, and exempts the shipper from the hard task of under- taking to detect, in every case, the negligence, fault, or fraud of the carrier; and it must be admitted that the rule would be highly just and necessary, if the loss was imputable to either of those cause S" Per Spencer, J, in Watkinson v Laugh- ton, 8 John S ( N Y) 217 And it has also been assigned as a reason, that the policy of the law in making the master liable is to induce him to employ honest men in his ser- vic e Watkinson v Laughton, 8 John S ( N Y)2i 3 .

Autor of the post: Undefined

3 In order to sustain Post Date: Fri, 25 Jul 2008 23:48:11 +0000
3 Patton v Magrath, I Rice ( S Car) 162; Rich v Coe, Cow P 636 Liability of Master and of Owner Dis- tinguishe d The owners "are bound by his [the master's] contracts, by reason of their employment of the ship and of the profit which they derive from it by the receipt of the freight mone Y The master is also liable on his own contract for the transportation of the goods, and by virtue of his taking charge of them for that purpos e The liability of the owners is implied by law from the nature of the employ- ment, on the ground of public polic Y The liability of the master seems rather to be by express undertaking, and although he is not owner and re- ceives no part of the freight, yet, on the same ground of public policy, and in favor of commerce, he is made personally responsible on his under- taking, even where the owners are known; which is thus far a departure from the general law of principal and agent." Patton v Magrath, I Rice ( S Car) 162 during transportation by a water carrier, suit may be brought against the vessel by na Me 1 C JOINDER AS AFFECTED BY FORM OF ACTIO N This ques- tion has already been considered in the discussion of the advan- tages peculiar to actions ex delicto and actions ex contract U As before stated, a suit laid in tort will not abate for a nonjoinder or misjoinder of parties defendant ; whereas a nonjoinder or mis- joinder of parties defendant in an action founded on contract is fatal on plea in abatement, in the absence of legislation providing otherwis e d ACTIONS AGAINST CONNECTING CARRIER S The rules as to proper parties defendant, where shipments are made over the lines of connecting carriers, conform almost entirely to the rules of substantive liability in such cases ; and the reader is referred, for a treatment of this subject, to the article on CARRIERS, in the A M Eng ENC Y LA W 4 Declaration, Complaint, Petition, or Libel A THE ALLEGA- TIONS (i) Capacity to Su e As in other cases, facts showing that the plaintiff has the capacity to sue should be stated in the declaration or complaint. 3 In order to sustain the action, it should sufficiently appear from the declaration, complaint, pe- tition, or libel that ownership of the property, either absolute, 4 1 See Seller v Steamship Pacific, i Oregon 409; Taylor v Steamboat Robert Campbell, 20 Mo 254; Blum v The Caddo, i Woods (U S) 64; The Sydney, 27 Fed Rep 119; The Queen of the Pacific, 61 Fed Rep 213 2 See II I I d (2), supr A 3 Minturn v Alexandre, 5 Fed Rep 117; Jenkins v Picket, 9 Yerg (Tenn) 480, Pennsylvania Co v Holderman, 69 Ind 18; Pennsylvania Co v Poor, 103 Ind 553, 23 A M Eng RCa S 711 Where a libel averred that certain sugars were laden on board a vessel, "to be carried thereon to the port of New York, and thence safely delivered to your libellants, and bills of lading therefor duly signed by the master of said bark, naming the libellants as consignees of said sugars;" and also averred " that by the collision your libellants have suffered damage in the value of said cargo $25,000," an ex- ception to the libel that it did not aver what, if any, interest the libellants, as consignors, had in the property, was held sustained, because the averments of the libel did not necessarily import that the libellants had any interest in the gocd S Minturn v Alexandre, 5 Fed Rep 117 4 Se C 2 Parties Plaintiff, supr A Allegation of Ownership Sufficienc Y In an action against a carrier for breach of a contract of carriage, a complaint, charging that plaintiffs were buyers and shippers of cattle, and on a date specified had cattle at a point in Indiana, which they delivered to defendant to be shipped to Chicago, sufficiently shows ownership in plain- tiffs, though it does not allege in terms that plaintiffs were the owners of the cattle shippe d Pennsylvania Co v Clark, 2 Ind App 146 A complaint, in an action against a carrier for breach of a contract of shipment of cattle, which alleges that plaintiff delivered the cattle to defend- ant for transportation tothe consignee, who was a commission merchant, and was to sell them for plaintiff, suffi- ciently avers ownership in plaintiff Cincinnati, etc, RCo v Case, 122 Ind 310, 42 A M Eng RCa S 537 A complaint which avers that the property was bought of the consignor by the plaintiff, that the consignor de- livered it to the carrier, and that the carrier executed a bill of lading to the plaintiff, sufficiently shows that plain- tiffs are the owners of the propert Y Ohio, etc, RCo v Yohe, 51 Ind 182 In an action against a common car- general, 1 or special, is vested in the plaintiff, 2 or that he is the party with whom the contract of shipment was mad e 3 (2) That Defendant is a Common CarrieRThe declaration, petition, complaint, or libel, as the case may be, must either allege expressly that the defendant is a common carrier, 4 or state facts from which the law will infer such capacity ; 5 otherwise the rier for failure to deliver freight, the employment of no other averment of ownership in the plaintiff than the word " claims " is not sufficient on de- murreRMontgomery, etc, RCo v Edmond S 41 Ala 667 1 Minturn v Alexandre, 5 Fed Rep 117; Jenkins v Picket, 9 Yerg (Tenn) 480 See also 2 Parties Plaintiff, supra, and cases cite d 2 Minturn -v Alexandre, 5 Fed Rep 117; Jenkins v Picket, 9 Yerg (Tenn) 480 See also 2 Parties Plain- tiff , supra, and cases cite d 3 See 2 Parties Plaintiff, supr A Sufficiency of Averment of Contract with Plaintiff Although a contract for carriage is made in the consignee's name, a complaint, in an action by the consignor, which alleges a shipment by plaintiff to the consignee, of cat- tle, to be sold by the consignee for plaintiff; and that the contract was signed, not by the consignee but by the consignor, sufficiently shows that the contract was made between the carrier and the plaintiff Cincinnati, etc, RCo -v Case, 122 Ind 310, 42 A M Ens;.

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Time of Delivery and Acceptanc Post Date: Fri, 25 Jul 2008 23:38:06 +0000
RCa S 537 4 Bristol v Rensselaer, etc, RCo, 9 Barb ( N Y) 158; Louisville, etc, RCo v Gerson (Ala, 1894), 14 So Rep 873; Seller v Steamship Pacific, i Oregon 409; Jones v Pitcher, 3 Stew p (Ala) 135 But see Mershon v Hobensack, 22 N J L 372, which contains a dictum to the effect that in assumpsit it is not neces- sary to commence with an induce- ment that defendants are common carrier S Proof Under a declaration in case which avers that the defendant is a carrier of goods and chattels for hire, etc, and alleges as a cause of action the violation by it of the duty of such carrier in the transportation of live stock for the plaintiff, proof that the company possesses the character of carrier of livestock is essentia L Lake Shore, etc, RCo v Perkins, 25 Mich 329, 5 A M R Y Rep 249 Varianc e Under counts charging defendant as a common carrier, no recovery can be had for losses result- ing from misrepresentation of de- fendant, whereby plaintiff was in- duced to ship on a slow instead of on a fast trai N Maslin v Baltimore, etc, RCo, 14 W Va 180 5 Toledo, etc, RCo v Roberts, 71 111 540; Baltimore, etc, RCo v Morehead, 5 W Va 293; Southern Ex- press Co v McVeigh, 20 Gratt ( Va) 264; Pennsylvania Co v Clark, 2 Ind App 146; Kain v Kansas City, etc, RCo, 29 Mo App 53 Illustrations Land Carrier S An averment that defendant is a corpora- tion created by the laws of the state, and engaged in operating a railroad and carrying goods and merchandise in cars furnished by itself upon its own and other roads, is equivalent to a specific averment that defendant is a common carrier; railroad corpora- tions being, by the laws of the state, common carrier S Toledo, etc, RCo v Roberts, 71 111 540 An allegation that " the defendant, before and at the time of the commit- ting of the grievances hereinafter mentioned," was the owner and pro- prietor "of a certain railroad, to wit, the Baltimore Ohio Railroad, and of certain carriages used by it for the carriage and conveyance of goods and chattels in, upon, and along said railway from a certain place, to wit, Parkersburg, Wood county, West Virginia, for hire and reward to it, the defendant, in that behalf," is a suf- ficient allegation that defendant is a common carrier, since it is the defini- tion of a common carrieRBaltimore, etc, RCo v Morehead, 5 W Va Where a petition alleges that plain- tiff caused to be delivered to defend- ant, a common carrier, certain wheat, to be carried over its own rtad to E and thence " to be forwarded " by de- fendant to plaintiff at L, and that de- fendant received the wheat for car- riage and delivery, but failed to deliver the same in good order, the words " to Aider by Verdi Ct It would seem, though, that after verdict no objection for want of such allegation can be taken if the proofs clearly show that the defendant is a common carrie R* Action on Special Contra Ct Of course, if the defendant is not sued as a common carrier, but on a special contract of shipment, no alle- gation that the defendant is a common carrier is necessar Y 3 Action in Re M Nor is such allegation necessary, or even proper, in a libel against a ship, because it would be inaccurate to charge an inanimate thing as a common carrieRNevertheless, to hold a ship to the responsibility of a common carrier, it must appear in the proof that she was employed in that characTer 4 (3) Corporate Existenc e If the defendant is a corporation, this fact should appear from the pleading, both at common law and under the cod e 5 Under the provisions of many statutes, corpo- rate existence may be shown in very general language, it being sufficient to allege the legal conclusion that the defendant is a corporatio N 6 At common law, it is believed that even this aver- ment is not essential, and that the pleading will be sufficient if the name of the defendant, as set out therein, imports that the defendant is a corporatio N 7 be forwarded " will be held to import a contract of carriage of the wheat by defendant as a common carrier from e to L , and a delivery to plaintiff Davis v Jacksonville S E Line (Mo, 1894), 28 S W, Rep, 965 Water Carrier S Where the decla- ration alleges that defendant followed the occupation of master or owner of a steamboat plying on a navigable river, the averment is sufficient to fix the character which the common law attaches to masters and owners of ships, steamboats, etc , so as to charge defendant with a breach of duty which alone results from that character, without an express averment totidem verbis that the defendant was a com- mon carrier; and the burden is on de- fendant to show that, in virtue of some special public notice or other good legal ground, he was not charge- able and responsible as a common carrier in such capacit Y Bennett v Filyaw, i Fla 451 1 Bristol v Rensselaer, etc, RCo, 9 Barb ( N Y) 158 2 Kain v Kansas City, etc, RCo, 29 Mo App 53; Pozzi v Shipton, 8 A d E L 963, 35 E C L 574- 3 Dunbar v Port Royal, etc, RCo, 36 S Car No 4 Seller v Steamship Pacific, i Oregon 409 5 See Woolf v City Steam-Boat Co, 7 CB 103, 62 E C L 103, and statutes Cited in following note S See also article CORPORATION S Insufficient Allegatio N A descrip- tion of the defendant as the Missouri and Pacific Railway Company, giving the name of the president, does not laise the presumption that it was an incorporated company; and the peti- tion is insufficient in this respe Ct Missouri Pac RCo v Douglas, 2 Tex App Civ Ca S, 28 In an action under the Missouri statute, which provides that the owner pf a slave may recover twice the value of the slave from a lailroad company, "in this state," which shall transport such slave over its road without the owner's permission, the petition was held fatally defective for not aver- ring that the defendant was a railroad corporation, and also for failure to aver that it was a railroad corporation from Missour I Welton v Pacific RCo, 34 Mo 358; McClure v Pacific RC O 35 Mo 189 (4) Delivery to CarrieRThe declaration or complaint must allege a delivery to the carrier, or it will be bad on general demur- rer for failure to state a cause of actio N 1 (5) Acceptance by CarrieRSo also it should be alleged that the defendant accepted or undertook to carry the goods so delivered to it. 8 (6). Time of Delivery and Acceptanc e It is usual, 3 and proba- CB 103, 62 E C L 103; Adams Express Co v Hill, 43 Ind 157; Adams Express Co v Harris, 120 Ind 73, 40 A M Eng RCa S 151; In- dianapolis Sun Co v Horrell, 53 Ind 527; Sayers v Crawfordsville First Nat Bank, 89 Ind 230; Will- iams v Baltimore, etc, RCo, 9 W Va 33 What Description Imports Incorpora- tio N In assumpsit the declaration commenced thus, "The plaintiff com- plains of the ' City Steam-Boat Com- pan Y' " On special demurrer, as- signing for causes that it did not ap- pear whether defendants were sued as a corporation or a company com- pletely registered, or by what act of parliament they were entitled to be sued by the name of a company, the court said : ' ' There is no positive rule, that I am aware of, which requires such ?.

Autor of the post: Undefined

McFadden v Missouri Pac RCo Post Date: Fri, 25 Jul 2008 23:25:49 +0000
mode of description as defend- ants' counsel insists upon in this case; nor is the description given at all out of the usual form; it impliedly amounts to an allegation that defend- ants arc a corporate bod Y" Woolf v City Steam-Boat Co, 7 CB 103, 62 E C L 103 An allegation, in a complaint that defendant is a common carrier, doing business under the style and firm name of the "Adams Express Company," implies that defendant is a corpora- tion, and not a compan Y Adams Ex- press Co v Hill, 43 Ind 157 1 Jordan v Hazard, 10 Ala 221; Max v Roberts, 12 East 89 An allegation of a delivery of prop- erty is equivalent to an allegation of a delivery of property to be safely and securely carried, subject to such ex- ceptions as the law create S Austin 0 Manchester, etc, RCo, 16 QB 600, 15 JuR670, 20 L J QB 440 Insufficient Allegation of Deliver Y A petition which alleges that cotton was delivered to defendant on its platform, that defendant's custom at that place was to receive freight for shipment on its platform, and that, relying upon this custom, plaintiff so delivered the cotton without demanding or receiv- ing a receipt or bill of 'ading therefor, charges defendant with the liability of warehouseman and not of avom- mon carrier, since, by Rev Stat, art S 277-283, the liability cf a common car- rier for freight does not attach until a receipt or bill of lading therefor has been give N Missouri Pac RCo v Douglas, 2 Tex App Civ Ca S, 28, 16 A M Eng RCa S 98 Allegation of Delivery and Loss Held Sufficient. --A petition, in an action against a common Carrier for loss of property, received for carriage, which alleges delivery and loss, is sufficient. McFadden v Missouri Pac RCo, 92 Mo 343, 30 A M Eng RCa S 17 2 Sommerville v Merrill, i Port (Ala) 107; Max v Roberts, 12 East 89 See also Davis v Jacksonville S E Line (Mo, 1894), 28 S W Rep 965; Williams v Baltimore, etc, RCo, 9 W Va 33 ; Adams Expiejs Co v Harris, 120 Ind 73, 40 A M Eng RCa S 151; Butt v Great Western RCo, ii CB 140, 73 E C L 140 3 Georgia Central RCo v Pick- ett, 87 Ga 734; Southwestern RCo v Bryant, 67 Ga 212 Indiana Adams Express Co v Hill, 43 Ind 157; U S Express Co v Keefer, 59 Ind 263; Ohio, etc, RCo v Nickless, 73 Ind 382; Adams Express Co v Harris, 120 Ind 73, 40 A M Eng RCa S 151; Baltimore, etc, RCo v McWhinney, 36 Ind 436, 5 A M R Y Rep 312 Michiga N Great Western RCo v Hawkins, 18 Mich 427 Missour I Davis v Jacksonville S e Line (Mo, 1894), 28 S W Rep 967 New York Rosebrooks v Dins- more, 5 Abb Pr, N S ( N Y Ct App) 59; Hempstead v New York Cent RCo, 28 Barb ( N Y) 485; Bates v Reynolds, 7 Bosw ( N Y) 685; Golden v Romer, 20 Hun ( N Y) 438 Ohio Despatch Line v Glenny, 41 Ohio St 166 bly necessary, to allege the time when the property was delivered to the defendant for transportatio N 1 (7) Consideration for Carriage Actions ex Contract U In actions ex contractu for loss of goods, it will be sufficient to allege gen- erally that the conveyance of the goods was in consideration of a reward to be paid, without specifying what the reward wa S* West VirginiaWilliams v Balti- more, etc, RCo, 9 W Va 33 Englan d Butt v Great Western RCo, II CB 140, 73 E C L 140; Gatfiffe v Bourne, 4 Bin g N Ca S 314, 33 E C L 364 Time must be Proved as Allege d In an assumpsit against a carrier for loss of goods, evidence of loss of goods shipped or delivered at any other time than that alleged in the writ is inad- missibl e Witzler v Collins, 70 Me 290 1 Missouri Pac RCo v Creath, 3 Tex App Civ Ca S, 83 Sufficient Allegation of Ti Me In an action for the recovery of eighty-six barrels of commercial fertilizers, shipped over defendants' road but not delivered, the complaint set out the shipment of two invoices, aggre- gating 240 barrels chemicals, on Fe b 4 and 13, 1879, from Port Royal to Al- lendale; and seven invoices at stated dates from February to May, 1879, f 256 barrels of dissolved bone, from Au- gusta to Allendale, out of which shipments twenty barrels of chemi- cals and sixty-six barrels of dissolved bone had not been delivered to the consignee; but that plaintiffs "do not know on what day or days the eighty- six barrels of fertilizers alleged to have been lost were received by the defendants for shipment.

Autor of the post: Undefined

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