Missouri Pacific Railway Co. v. Beeson , 30 Kan. 298 ( 1883 )

The opinion of the court was delivered by

Valentine, J.:

This was an action brought by H. V. Beeson against the Missouri Pacific railway company, in the district court of Miami county, Kansas, to recover from the defendant the value of two sacks of wool. The plaintiff alleged in bis petition, among other things, that on October 20, 1881, the plaintiff delivered to the defendant, at Paola, Kansas, eighty-one sacks of wool, to be carried by the defendant as a common carrier of goods, to the city of Philadelphia, Pennsylvania, there to be delivered by the defendant to W. C. Houston, jr., & Co,, and that the defendant failed to carry two of such sacks of wool, or to deliver them to W. C. Houston, jr., & Co., or to anyone else for the plaintiff, or to account for them in any other manner to the plaintiff.

The defendant, in answer to the plaintiff’s petition, admitted that it was a common carrier of goods from the city of Paola, Kansas, to the city of St. Louis, Missouri; denied that it ever agreed to carry said wool to the city of Philadelphia, or to deliver it to the consignees; but admitted that on October 20, 1881, the plaintiff delivered to the agent of the defendant, at Paola, Kansas, eighty-one sacks of wool, and that the defendant agreed to carry the wool from Paola, Kansas, to its station at St. Louis, Missouri, the terminus of its road, and there deliver the same to some responsible carrier on the route from St. Louis to Philadelphia. The defendant further alleged that it performed all things which it had agreed to perform; and it attached copies of the bills of lading for the wool to its answer, and made them a part thereof. The bills of lading mentioned in the defendant’s answer were receipts for the wool, signed by the agent of the defendant only, and showed that the wool was to be carried from Paola, Kansas, to “St. Louis station,” and showed that the consignees were W. C. Houston, jr., & Co., Philadelphia, Pennsylvania.

The plaintiff, in reply to defendant’s answer, denied each and all matters set forth therein which were inconsistent with the allegations of his petition. • Judgment was rendered in iavor of the plaintiff and against the defendant for the sum of $198.25, the value of the two sacks of wool, and costs. This judgment the defendant now seeks to have reversed by this court;

About the only contested question of fact in the case is, whether the wool was to be carried to Philadelphia, Pennsylvania, or only to St. Louis. Upon the pleadings, the evidence, and the findings of the jury, we think it must be held that the wool was to be carried to Philadelphia, Pennsylvania. Upon the pleadings, the evidence, and the findings of the jury, we think the facts, stated briefly, are substantially as follows: In October, 1881, the plaintiff and defendant entered into a parol contract that the defendant should carry the plaintiff’s wool from Paola, Kansas, to Philadelphia, Pennsylvania, at a certain price per hundred weight as compensation ; that under and by virtue of this parol contract, the plaintiff, on October 20,1881, delivered to the defendant eighty-one sacks, containing 18,592 pounds of wool. After the wool was all delivered and put into the defendant’s cars, and the cars locked, the defendant’s agent handed to the plaintiff the bills of lading, which showed, as before stated, that the wool was to be carried from Paola, Kansas, to “St. Louis station.” The plaintiff did not read the bills of lading, but merely glanced at them to see that the number of sacks of wool and the weight were correct, and that the consignees were W. C. Houston, jr., & Co., Philadelphia, Pennsylvania. He believed that the wool was to be carried to Philadelphia, and did not know that the bills of lading indicated anything else.

We think there can be but little dispute about these facts. Prior to the time of making the contract, the plaintiff asked an agent of the defendant what he would charge him for carrying wool “ to Philadelphia on a through bill of freight.” The agent answered that he would have to telegraph to St. Louis. Afterward the agent handed the plaintiff a paper showing the rate at which they would carry wool from Paola to Philadelphia. There was nothing said about carrying the wool to St. Louis, or about the price of carrying the wool to St. Louis, or about the price from St. Louis to Philadelphia, or about St. Louis being the terminus of the defendant’s railroad ; and there is nothing in the record that shows that the plaintiff knew at the time where the defendant’s railroad did terminate. The entire conversation was about carrying the wool from Paola to Philadelphia, and the price fixed for carrying the wool was from Paola to Philadelphia. Afterward, when the wool was delivered, the name of the consignees, “ W. C. Houston, jr., & Co., Philadelphia, Pennsylvania,” with the number of their place of business, was marked on each sack. The plaintiff offered to pay for-carrying the wool through to Philadelphia, but the agent would not receive the same, but said that “they would collect it at Philadelphia.” The agent said nothing at the time, or at any other time, about carrying the wool only to St. Louis, or that they would collect the freight at that point, or only to that point; but in fact said that “ they would collect it at Philadelphia.” At Philadelphia, a larger amount was collected for carrying the freight than was agreed upon between the parties. Afterward the plaintiff demanded of the defendant that it should refund the excess, and the company refunded such excess.'

As before stated, the wool was delivered by the plaintiff to the defendant on the original parol contract, and upon a contract to pay a particular price per hundred for carrying it, from Paola to Philadelphia. Now if these bills of lading which were afterward handed by the agent of the defendant to the plaintiff were to supersede the original contract, then what was the plaintiff to pay the defendant for carrying the wool from Paola to “St. Louis”? Certainly not the original contract price, for the wool was to be carried through to Philadelphia for such price; and certainly not the schedule price, or what might afterward be found to be a reasonable price, for there was a special contract as to what the price should be. The plaintiff testified that there was a rate agreed upon from Paola to Philadelphia, and the company admitted the same by refunding the overcharge collected at Philadelphia.

We think it is clear from the evidence and the findings of the jury, that there was an original parol contract to carry the wool from Paola to Philadelphia at a settled price, before the wool was delivered under such contract, and before any bills of lading were made out or delivered to the plaintiff, and that it is the parol contract which must determine the rights of ■the parties in this case, and not the bills of lading. There is nothing in the whole record of the case to show that the plaintiff acquiesced in-that portion of the bills of lading which stated that the wool was to be carried to “St. Louis •station,” except that the plaintiff received the bills and made no objection; but, as he states in his testimony on the trial, he did nqt read the bills, and did not know that they apparently changed the original contract between the parties.

Upon this view of the case, we think the plaintiff is entitled to recover. We have examined the authorities cited by the plaintiff in error, defendant below, and do not think that any of them conflict with this view, while the- cases of A. M. U. Ex. Co. v. Schier, 53 Ill. 140, and Rld. Co. v. Manu’g Co., 83 U. S. (16 Wall.) 319, are in harmony with this view. Of course bills of lading are prima facie evidence of what the contract was between the parties, and it devolved upon the plaintiff to ■.show that the contract apparently shown by the bills of lading was not the contract upon which the wool was delivered -.to the defendant for transportation. If no previous contract had been made between the parties, the bills of lading would be conclusive evidence as to the character of the contract between the parties. And possibly, if the defendant or its agents had called the attention of the plaintiff to the particular words in the bill of lading showing that the wool was to be carried to “St. Louis station,” or if the plaintiff at the ‘time of receiving the bills of lading had read the same and ■made no objection thereto, the bills of lading might be considered as conclusive evidence of the character and extent of the contract between the parties. But a bill of lading signed 'by one party only, read by one party only, and understood by -one party only, can hardly be held to overturn and destroy a previous contract entered into by and between both the parties, when the original contract has been principally executed :and fulfilled on the part of one of the parties, and by. that one who did not understand the contents of the bill of lading, and who is to suffer if the original contract is to be considered as overturned and destroyed. After the plaintiff’s, wool was loaded upon and within the defendant’s oars, and the cars locked, it was hardly the proper time for the defendant to attempt to change the original contract.

We think there are no other questions which require comment in detail.

The judgment of the court below will be affirmed.

All the Justices concurring.