Jarrett v. Great Northern Railway Co.

CANTY, J.

Plaintiff appeals from an order sustaining a demurrer to the complaint on the ground that it does not state a cause of action.

It is alleged in the first cause of action that defendant is a common carrier, and that, “for a valuable consideration,” it agreed to safely carry from Donnelly, Minnesota, to Minneapolis, certain goods, and deliver the same, at the latter place, to John McGregor & Co.; that the goods were the property of plaintiff, and were consigned by him to John McGregor & Co., as commission merchants, to sell the same for plaintiff; and that he then delivered the goods to defendant at Donnelly, pursuant to said agreement with it. It is further alleged

“That the defendant did not safely carry and deliver said goods, within a reasonable time, or at all, to said John McGregor & Go.,, at said city of Minneapolis, or at any other place, or at all, pursuant to said agreement, and did not deliver the same to plaintiff, or any other person, pursuant to plaintiff’s order, at said city of Minneapolis, or at all; whereby said hay became wholly lost to this plaintiff, to his damage in the sum of $115.51, no part of which has ever been paid.”

The second cause of action is similar in form, and need not be noticed further.

1. There is nothing in respondent’s claim that the consignor cannot maintain the action, and that the consignee alone can do so. In Dyer v. Great Northern Ry. Co., 51 Minn. 345, 53 N. W. 714, cited by respondent, it was held at page 347,

“If no other facts appear, (except what appears by the production 'by the consignee of the bill of lading,) the consignee, and not the consignor, of property delivered to a common carrier, must be considered its owner.”

But in this case other facts appear, which show that the consignee is not the owner, and the consignor is.

2. The complaint alleges that, “for a valuable consideration,” 'defendant agreed to carry the goods. It does not appear what that consideration is, or whether it is freight paid or to be paid, and, if such consideration is something other than the payment of freight, it does not appear whether or not the delivery or performance of it was a condition precedent to the delivery of the goods to the consignee after the same were carried. Then we cannot sustain respondent’s contention that the complaint should allege that the freight was paid or offered to be paid.

3. The complaint does not allege that plaintiff demanded the goods before bringing this action. It does not appear that it is not in the power of the defendant to deliver the goods, and, for these reasons, the complaint does not, in our opinion, state a cause •of action.

It is immaterial whether an action of trover is brought or one, on contract. In either case, the action must be founded on the same breach of duty by defendant. That breach of duty is the failure to deliver the goods when demanded. It is not the customary duty of a railroad company to tender the goods to the consignee, but the goods are kept at the depot or warehouse until the consignee-calls for them. And, before an action can be maintained against such a common carrier, a demand for the goods must be made. Michigan v. Bivens, 13 Ind. 263; Rome v. Sullivan, 14 Ga. 277; Bird v. Georgia, 72 Ga. 655; Gregg v. Illinois, 147 Ill. 550, 35 N. E. 343; 4 Elliott, Railroads, § 1526; 5 Am. & Eng. Enc. (2d Ed.) 230.

The allegation in the complaint that “the defendant did not safely carry and deliver said goods” is a sort of negative pregnant,, and does not amount to an allegation that the goods were injured or destroyed in transit, or that there was a failure to deliver them' on demand.

The order appealed from is affirmed.