DocketNumber: No. 20,849
Citation Numbers: 100 Kan. 537
Judges: Johnston, Marshall, Mason, Porter
Filed Date: 5/12/1917
Status: Precedential
Modified Date: 9/8/2022
The opinion of the court was delivered by
This was an action by A. S. Bennett against the Missouri Pacific Railway Company to recover damages arising from the breach of a contract for the shipment of grain. From the judgment in plaintiff’s favor the defendant appeals. 1
It appears that plaintiff contracted to sell nineteen cars of grain to the Loughry Brothers Milling and Grain Company, to be shipped from various points in Kansas and delivered at Chicago, 111., to the Panhandle Railway Company, to be carried by that company to Monticello, Ind. Upon delivery at Chicago plaintiff -was to recover 82% cents a bushel for the wheat, less the freight from the point of shipment to Chicago. Instructions were given to the defendant to ship by way of Chicago and there to deliver the shipment to the Panhandle
It is insisted by defendant that this is a companion of the case of McCullough v. Railway Co., 98 Kan. 710, 160 Pac. 214, and that the rule of that case was not followed by the trial court in this one. The present case was not brought to recover for the loss of the milling-in-transit privilege, nor was that privilege involved in the action brought by the plaintiff. His action was brought to recover damages for the breach of a contract by which the defendant undertook to deliver the wheat to another carrier in Chicago. Plaintiff had contracted with Loughry Brothers Milling and Grain Company that he would cause the wheat to be shipped and delivered to the Pan
In Goodrich v. Thompson, 44 N. Y. 324, the carrier undertook to transport goods by a particular boat, but instead of doing so, shipped them in another boat, and they were lost. It was decided that “a specific agreement to do an act in a certain manner is not satisfied by an attempt to do it in another and a failure to accomplish the object.” (p. 334.) It was further said in that case that “the forwarding of the goods by another steamer than that agreed upon without the assent of the plaintiffs, or any notice to them of their intention so to forward
In Kemendo v. Fruit Dispatch Co., 61 Tex. Civ. App. '631, the initial carrier delivered a shipment to another carrier than the one stipulated in the bill of lading which it had issued, and it was held that the,,wrongful act made the initial carrier liable as though for a conversion of the goods when not delivered or when delivered in a damaged condition.
A case quite closely in point with this one is Brown & Haywood Co. v. Pennsylvania Co., 63 Minn. 546. A carload of glass was delivered to the defendant company, and' it issued a bill of lading under which the glass was to be shipped to Snohomish, in the state of Washington, by way of the Chicago, St. Paul & Kansas City railroad and the Northern Pacific railroad. Instead of delivering the glass as contracted, the defendant delivered it to the Union Pacific railroad. The shipper had arranged with the Northern' Pacific railroad to stop the car at two points on the route where parts of the shipment were to be unloaded and delivered. As the glass had been shipped over the Union Pacific railroad this could not be done, and considerable loss resulted from the failure to follow the directions in making the delivery to a connecting carrier. It was held, and in fact conceded, that the-act of the defendant in delivering the goods to a carrier other than the one agreed upon made itself liable as for a conversion. There was a contention that as the defendant had no knowledge of the contract with the Northern Pacific railroad as to the distribution of the glass at different points on the way, the defendant was released from liability; that it was enough if the goods were delivered at Snohomish, the final destination in the shipment. In response to these claims the court said:
“The fallacy of counsel’s position consists in assuming that there was, in fact, any contract between the plaintiff and defendant to carry the goods to Snohomish. Defendant made no such contract. It merely agreed to carry the goods over its own line, and deliver them to the next designated carrier, with proper directions for their future carriage. There its contract and its duties ended. But this contract, made with defendant, was not the whole of plaintiff’s contract. It had, made another contract with the Northern Pacific Railroad Company to distribute the goods at the three points aforesaid. It is true that defend*541 ant had no knowledge of the latter contract, but the latter contract did not concern defendant, or in any manner increase its liability, if it had rightfully performed its own contract; and we can not see that plaintiff was under any obligation to inform defendant of a matter which did not concern it.” (p. 550.)
(See, also, The Georgia Railroad Company v. Cole & Co., 68 Ga. 623; Johnson v. N. Y. Central R. R. Co., 33 N. Y. 610; Hand v. Baynes, 4 Wharton [Pa.], 203; Phila. Etc. R. Co. v. Beck, 125 Pa. St. 620.)
So here, the defendant undertook to transport the goods to Chicago and deliver them to the Panhandle railroad. There its contract with the plaintiff ended. If it had observed the-obligation of its agreement no liability to plaintiff would have been incurred. It is immaterial what arrangement the purchaser of the wheat had with the Panhandle Railroad Company. -Whatever it may have been, it constituted no part of the contract between plaintiff and defendant. When it failed to carry out the contract,, and when it delivered the grain at a place other than that agreed upon, it became liable as for conversion, and is responsible for the loss occasioned to plaintiff by the violation of the contract.
There is a challenge of the sufficiency of the proof of loss. Plaintiff offered testimony enough, at least, to make a prima facie case, of the added charges that had to be paid in order to obtain possession of the wheat, and of the loss occasioned by the breach of the contract. The defendant did not refute this evidence, but appeared to devote most of its attention to the loss of the milling-in-transit privilege and in showing that the plaintiff was not entitled to this privilege; but that privilege, as we have seen, is not involved in this action.
We find no error in the rulings of the trial court, and its judgment is therefore affirmed.