Wiggin v. Boston & Albany Railroad , 120 Mass. 201 ( 1876 )

Endicott, J.

The defendant, as one of the Red Line Transit Company, undertook to carry, according to the terms of a bill of lading, issued by the Transit Company, a car load of oats in bulk on board car No. 3761; the oats are stated in the bill of lading to weigh 20,000 pounds. The car arrived in Springfield on its way to the plaintiffs at Northampton, and while there and in the custody of the defendant, it was found to contain 23,667 pounds of oats. The excess over 20,000 pounds was taken from it by the defendant, and the car then forwarded to the plaintiffs. It appears by the bill of exceptions that the plaintiffs purchased the oats of one Perry to be delivered at Peoria, Illinois, on the cars; that no one other than the plaintiffs had any oats in the car ; that the plaintiffs had paid for the full contents of the car, viz.: 23,667 pounds; and that 20,000 pounds, brought on the car, had been actually delivered to the plaintiffs by the defendant. Admitting these facts to be true, the plaintiffs had title to the whole contents of the car, as their property. Peebles v. Boston & Albany Railroad, 112 Mass. 498.

The defendant contends that the plaintiffs cannot maintain this action for conversion of the .oats which it took from the car; and the case comes before us on exceptions to evidence, and to the refusal of the presiding judge to give certain instructions to the jury.

1. The testimony of Hamilton, the freight agent of the defendant at Springfield, that he removed, on behalf of the defendant, the oats from the car, was properly admitted. The question at the trial was not whether the defendant would be liable for the full contents of the car, or for 20,000 pounds only, if the car load of oats or the excess over 20,000 pounds had been destroyed ; but whether it had taken the property of the plaintiffs and converted the same to its own use. For even if the defendant was only liable to deliver 20,000 pounds, if that was all that arrived, it is clear that the defendant did not gain any title to the property of the plaintiffs because more than 20,000 pounds did arrive. Whatever remedy the defendant had for having carried the excess over 20,000 pounds, it was not by appropriating to its own use the plaintiffs’ property. The evidence was therefore competent upon the question of conversion.

2. The letter of Hamilton was also properly admitted. It contained a declaration, by an agent of the defendant, respecting a matter in his charge and within the scope of his agency; Morse v. Connecticut River Railroad, 6 Gray, 450 ; and was competent as offered, within the rule laid down in Stone v. Sanborn, 104 Mass. 319. As the letter stated only in general terms what Hamilton testified to in detail, the defendant could not have been injured by its admission.

3. The first and second prayers for instructions were properly refused. If Perry did inform the Transit Company that the oats weighed 20,000 pounds, knowing that they weighed more, and did so that they might be carried as 20,000 pounds only, it could not affect the plaintiffs’ title to their property, a large portion of which the defendant had in fact delivered, or justify the defendant in converting it.

■Nor would the defendant be justified in taking the property of the plaintiffs, even if the plaintiffs knew that the oats were “ under-billed,” and suffered them to come on without notifying the defendant, intending to take them without paying freight on the excess unless demanded.

4. Upon the facts presented in the bill of exceptions; the presiding judge was not bound to give the last instruction requested. The substance of the instruction was that the plaintiffs could not recover, because it did not appear in evidence that the plaintiffs had made any demand for the excess of oats, or any offer to pay freight on the excess, or that the defendant would not have forwarded the oats, on an offer to pay freight being made; although it did appear that the defendant had taken the oats and kept them. But there was other evidence upon which the jury could have found a conversion, and the defendant did not ask to go to the jury on that question. If the defendant failed to deliver for other causes than non-payment of freight, no demand or tender was necessary. Peebles v. Boston & Albany Railroad, 112 Mass. 498, 509. Exceptions overruled.