Baltimore & Ohio Railroad v. Davis , 20 Week. No. 514 ( 1888 )

Opinion by

Mr. Justice Green :

We find ourselves unable to discover anything in the evidence in this case sufficient to establish a liability on the part of the defendant. The writs of attachment were served before any notice of stoppage in transitu was given; and the learned court below was clearly and rightly of opinion that on that part of the case there was no liability of the defendant in this action; but the court thought that there was something in the correspondence which misled the plaintiffs to their hurt, so that they were induced to forego their right and duty to look after the goods in question.

We cannot so understand the correspondence, or any of the testimony. The plaintiffs knew perfectly well that the goods were under attachment at all times after October 30 or 31. They knew also that the defendant had declined to surrender them into their possession on account of the attachment Surely, diligence on their part became a duty at once, if they intended to get the goods from the defendant; they could not lie by supinely in the expectation that the defendant, who had no interest in their behalf, would surrender the goods in defiance of the attachment, unless it was fully indemnified. But it does not appear either in the correspondence or in the testimony, that they ever offered to indemnify the defendant in any way for disregarding the legal process. However, after delaying till December 12, they were then distinctly notified by the letter o £ that date that a bond must be given before anything further could be done. But still they paid no attention and did nothing, and then the attachment proceedings came to an end by the sale of the property. Surely, immediately after December 12, it was their duty to take active steps in their own behalf; and it would be a perversion of justice to hold the defendant responsible for a delay which, so far as we can see, was purely the fault, of the plaintiffs.

We discover nothing in the letters or in the testimony tending to mislead the plaintiffs, and therefore think it was error to commit that question to the jury.

Judgment reversed and new venire awarded.