Clubb v. St. Louis & San Francisco Railroad , 136 Mo. App. 1 ( 1909 )

GOODE, J.

(after stating the facts). — Against the judgment it is said the action will not lie in plaintiff's name, because the contract of shipment was between defendant and Shrene, and the latter alone could sue on it. No doubt Shrene might have sued (Atchison v. Railroad, 80 Mo. 213), but under the terms of the present bill of lading it is clear plaintiff, as the owner and person for whose benefit the contract was made, might sue. Shrene testified Clubb wrote him from somewhere to send the car to the Keyes Commission Company at East St. Louis and he (Shrene) signed up the contract as agent of Clubb. Shrene did not purport to contract as owner of the property, for after his signature on the bill of lading, appear the words “owner or shipper;” and whenever he is designated throughout the contract, it is as shipper. In one clause it is recited that in making the contract “the undersigned owner, or agent of the owner, of the stock named herein, expressly acknowledges,” etc., that is, agreed to a certain stipulation. So, on the back of the contract over the signature of Shrene, he was spoken of as “the undersigned, owner or vn charge of the live stock mentioned in the within contract” (we italicize); and then followed certain stipulations to -which he agreed. It is fairly inferable from the evidence the company understood Shrene was contracting as agent for Clubb, and the contract itself shows that if he was an agent and not the owner of the sheep, the company was wdlling to contract with him in the former capacity. This being so, we are dealing with the common case of a contract made by an agent for his principal on which the latter may maintain an action. [Briggs v. Munchow, 56 Mo. 467; Hickman v. Craig, 6 Mo. App. 583; Bank v. Jennings, 18 Mo. App. 651.]

Another defense involved is failure to give notice of the claim for damages within the time stipulated in the bill of lading. There is nothing in this defense, nor is any clear argument in its favor advanced. The written notice was not given until the second day after the sheep arrived, instead of the first day after. But verbal notice was given by the consignee in behalf of plaintiff the day they arrived and defendant’s live stock agent, whose business it was to investigate whether the sheep had been injured by traveling in a wet car and if so, whether defendant was to blame, and the merits generally of the claim, refused to make an investigation and told the person who gave the notice to go ahead and sell the sheep and put in a claim for damages. A written notice stating particulars was delivered on the second day. The stipulation for notice of a claim for damages will be enforced in reason, but not so as to permit a carrier to induce a shipper to believe strict compliance will be waived and afterwards evade liability because of omission to comply strictly. Delivery of written notice on the day after arrival was waived. [Summers v. Railroad, 114 Mo. App. loc. cit. 458; Rice v. Railroad, 63 Mo. 322.]

The judgment is affirmed.

All concur.