A Circuit Court of the United States may direct a verdict for
the plaintiff when it is clear from all the evidence in the case
that he is entitled to recover, and no matter affecting his claim
is left in doubt to be determined by the jury.
The undertaking of a common carrier to transport livestock,
though differing in some respects from the responsibility assumed
in the carriage of ordinary goods, includes the delivery of the
livestock.
Page 123 U. S. 728
When a railroad company receives livestock for transportation by
means of connecting lines to a named consignee or to his order at a
destination beyond its terminus, and gives a receipt or bill of
lading in accordance therewith, and delivers the property safely to
the next connecting line, from which it finally passes into the
possession of the connecting company on whose line the point of
destination is, the latter company is bound to deliver the property
there to the consignee or to his order, if they are made known to
it on receiving the freight, and it is not released from that
liability by reason of a practice or custom to deliver all such
freight to a drove-yard company without requiring the production of
the bill of lading or receipt, or other authority of the shipper,
knowledge of the practice or custom not being brought home to the
holder of such receipt, bill of lading, or other authority.
A railroad company received livestock to be transported over its
line and over connecting lines to a distant point beyond its
terminus. It gave the shipper a receipt stating that they were
"consigned to order P.M." (who was also shipper and owner), "notify
J.B." at the point of destination. The goods were safely
transported to that point. The agents of the last transporting line
received with the property a waybill containing the same statements
as to the consignee, and as to the party to be notified.
Held that knowledge of the destination and the consignee
of the goods being thus brought to the notice of the company which
carried the goods to their destination, it became its duty to
deliver, or to instruct its agents to deliver, the property only to
the consignee or his order, and that a delivery of the property to
J.B. after such knowledge would not avail as a defense when sued
for its value by a bank at the place of shipment, which had
discounted a bill drawn by the shipper, and secured by an
endorsement of the receipt as collateral.
This was an action brought by the Commercial National Bank of
Chicago against the North Pennsylvania Railroad Company to recover
the value of 404 head of cattle received by it in November, 1877,
to transport to Philadelphia, and not delivered there to the
plaintiff, the assignee of the shipper, or to its order. The facts
out of which it arose are briefly as follows:
In 1877, one Paris Myrick was engaged at Chicago in the business
of buying cattle and forwarding them by railway to Philadelphia. On
the 7th of November of that year, he bought 202 head of cattle,
weighing 240,000 pounds, and on the same day delivered them to the
Michigan Central Railroad Company at Chicago, to be transported to
Philadelphia. That company is one of several railway carriers
forming a
Page 123 U. S. 729
continuous line from Chicago to Philadelphia. On the delivery of
the cattle, Myrick took from the company the following receipt:
"MICHIGAN CENTRAL RAILROAD COMPANY"
"CHICAGO STATION, November 7, 1877"
"Received from Paris Myrick in apparent good order. Consigned to
order Paris Myrick."
"Notify J. & W. Blaker, Philadelphia, Pa."
"Articles Marked Weight or measure "
"Two hundred & two (202) Cattle. 240,000"
"Advanced charges, $12.00."
"Marked and described as above (contents and value otherwise
unknown), for transportation by the Michigan Central Railroad
Company to the warehouse at . . . ."
"Notice. See rules of transportation on the back hereof."
"Use separate receipts for each consignment."
"WM. GROGAN,
Agent"
On the margin of the receipt was the following notice:
"This company will not hold itself responsible for the accuracy
of these weights as between buyer and seller; the approximate
weight having been ascertained by track scales, which is
sufficiently accurate for freighting purposes, but may not be
strictly correct as between buyer and seller."
"This receipt can be exchanged for a through bill of
lading."
On the same day, Myrick drew and delivered to the Commercial
National Bank of Chicago a draft, of which the following is a
copy:
"$12,287.57 CHICAGO, November 7, 1877"
"Pay to the order of George L. Otis, cashier, twelve thousand
two hundred and eighty-seven 57/100 dollars, value received, and
charge the same to account of -- PARIS MYRICK."
"To J. & W. Blaker, Newtown, Bucks Co., Pa."
As security for the payment of the draft, Myrick endorsed the
receipt obtained from the railroad company, and delivered
Page 123 U. S. 730
it with the draft to the bank, which thereupon gave him the
money.
On the 14th of November, Myrick purchased 202 more head of
cattle, weighing 260,000 pounds, and on that day delivered them to
the Michigan Central Railroad Company at Chicago, to be transported
to Philadelphia, and received from the company a similar receipt to
the one taken on the first shipment. On the same day, he drew
another draft, and delivered it to the Commercial National Bank, of
which the following is a copy:
"$12,448.12 CHICAGO, November 14, 1877"
"Pay to the order of Geo. L. Otis, cashier, twelve thousand four
hundred & forty-eight 12/100 dollars, value received, and
charge same to account of --"
"PARIS MYRICK"
"To J. & W. Blaker, Newtown, Bucks Co., Pa."
For the payment of this draft, Myrick endorsed the receipt
obtained from the railroad company, and delivered it, with the
draft, to the bank, which thereupon gave him the money. The cattle
of both shipments were conveyed on the road of the Michigan Central
Railroad Company to Detroit, and thence over the roads of other
connecting companies to Philadelphia. The last two carriers were
the Lehigh Valley Railroad Company and the North Pennsylvania
Railroad Company, whose lines extended between Waverly, Tioga
County, New York, and Philadelphia. The cattle of both shipments
were carried over the roads of these companies from Waverly on
their joint waybills. The thirteen covering the first shipment were
dated November 10, 1877, and 12 of them were alike except in the
number of cattle carried under them. The following is a copy of one
of them:
Page 123 U. S. 731
image:a
In the thirteenth joint waybill of the first shipment the words
"Notify J. & W. Blaker" were omitted.
The joint waybills covering the second shipment were dated
November 17, 1877, but, like the thirteenth joint waybill of the
first shipment, they did not contain the words "Notify J. & W.
Blaker" after the name of the consignee or owner. In other
respects, except in the number of cattle carried, they were similar
to those covering the first shipment.
The cattle of both shipments arrived in Philadelphia, the first
on November 11 and the second on November 18 -- and were
immediately delivered by the Pennsylvania Railroad Company to the
North Philadelphia Drove-Yard Company, which was formed for the
business of receiving, taking care of, and delivering livestock to
their owners or consignees. This company notified the Blakers of
the arrival of the cattle and delivered them to those parties. The
Blakers were dealers in cattle, and had particular pens in the yard
assigned to them. The cattle of both shipments were placed in these
pens by the agent of the railroad company at the drove-yard
station, and he then wrote on the thirteenth joint waybill of the
first shipments, and on all the joint waybills of the last shipment
from Waverly, under the name of the consignee or owner, these
words: "Ac. J. & W. Blaker." On the day after they arrived and
were placed in these pens, in each case, the Blakers sold the
cattle and appropriated the proceeds. The cattle of both shipments
were delivered by the railroad company to the drove-yard company
without any direction to hold the cattle subject to
Page 123 U. S. 732
the order of the consignee, who was also the owner and shipper,
and the cattle were delivered to the Blakers without such order. It
does not appear that any demand was made by the railroad company or
by the drove-yard company for anything to show the right of those
parties to receive the cattle. The bank transmitted the drafts for
collection, with the carriers' receipts attached, to its
correspondent at Newtown, Pennsylvania. The Blakers were notified
of the receipt of the drafts, but failed to accept them, and they
were protested for nonacceptance November 27, 1877. They disposed
of the cattle before the arrival of the drafts and carriers'
receipts, and soon afterwards failed, and the drafts were not
paid.
It appeared in evidence that Myrick had previously made numerous
shipments of cattle from Chicago to Philadelphia, and taken similar
receipts from the Michigan Central Railroad Company; that these
cattle had been received by the North Pennsylvania Railroad Company
and delivered by it at Philadelphia to the drove-yard company; that
it had been the practice of that railroad company to deliver the
cattle to the drove-yard company, and of the latter company to
deliver them to the Blakers without the production of the carrier's
receipt or any bill of lading, or any order of the shipper for
their delivery. It also appeared that there was no knowledge on the
part of the Commercial Bank at Chicago, or of its correspondent at
Newtown, of any such practice; that drafts of Myrick, cashed by
that bank, had accompanied previous shipments of cattle; that such
drafts, upon notice to the Blakers of their receipt, had always
been promptly paid, and that the bills of lading (the carriers'
receipts in question) were not surrendered to the Blakers until
such payment.
Upon these facts, the Commercial National Bank originally
recovered a verdict and judgment against the Michigan Central
Railroad Company, the court below holding that the receipts of that
company constituted contracts to carry the cattle from Chicago to
Philadelphia, and deliver them there to the shipper or to his
order; but the judgment was reversed by this Court on the ground
that a through contract for their carriage was not established by
those receipts, and that the
Page 123 U. S. 733
question of whether or not there was such a contract for their
carriage should have been submitted to the jury to determine from
the circumstances of the case.
Myrick v. Michigan Central
Railroad Co., 107 U. S. 102. The
present action was subsequently brought against the North
Pennsylvania Railroad Company, the last of the series of railroad
carriers in the line from Chicago to Philadelphia, for the
nondelivery at Philadelphia of the cattle of both shipments to the
order of the shipper, as designated in the receipts given to him at
Chicago and in the waybills given at Waverly -- that is, to his
assignee, the plaintiff herein. Upon the evidence in the case,
which developed the facts substantially as stated, the court
directed a verdict for the plaintiff for the amount of its claim. A
verdict was accordingly rendered for $34,271.41, which was the
amount of the drafts, with interest from their dates. The cattle
sold in November, 1877, for a sum greater than the amount of both
drafts. Judgment being entered on the verdict, the case was brought
to this Court for review.
MR. JUSTICE FIELD, after stating the facts as above, delivered
the opinion of the Court.
There is no doubt of the power of the circuit court to direct a
verdict for the plaintiff upon the evidence presented in a cause,
where it is clear that he is entitled to recover, and no matter
affecting his claim is left in doubt to be determined by the jury.
Such a direction is eminently proper, when it would be the duty of
the court to set aside a different verdict if one were rendered. It
would be an idle proceeding to submit the evidence to the jury when
they could justly find only in one way.
Anderson County
Commissioners v. Beal, 113 U. S. 227,
113 U. S.
241.
Upon the evidence presented, and there was no conflict in it,
the law was with the plaintiff. The duty of a common carrier is not
merely to carry safely the goods entrusted to him,
Page 123 U. S. 734
but also to deliver them to the party designated by the terms of
the shipment or to his order at the place of destination. There are
no conditions which would release him from this duty except such as
would also release him from the safe carriage of the goods. The
undertaking of the carrier to transport goods necessarily includes
the duty of delivering them. A railroad company, it is true, is not
a carrier of livestock with the same responsibilities which attend
it as a carrier of goods. The nature of the property, the inherent
difficulties of its safe transportation, and the necessity of
furnishing to the animals food and water, light, and air and
protecting them from injuring each other impose duties in many
respects widely different from those devolving upon a mere carrier
of goods. The most scrupulous care in the performance of his duties
will not always secure the carrier from loss. But notwithstanding
this difference in duties and responsibilities, the railroad
company, when it undertakes generally to carry such freight,
becomes subject, under similar conditions, to the same obligations,
so far as the delivery of the animals which are safely transported
is concerned, as in the case of goods. They are to be delivered at
the place of destination to the party designated to receive them if
he presents himself, or can with reasonable efforts be found, or to
his order. No obligation of the carrier, whether the freight
consists of goods or of livestock, is more strictly enforced.
Forbes v. Boston & Lowell Railroad Co., 133 Mass. 154;
McEntee v. New Jersey Steamboat Co., 45 N.Y. 34.
If the consignee is absent from the place of destination or
cannot after reasonable inquiries be found, and no one appears to
represent him, the carrier may place the goods in a warehouse or
store with a responsible person to be kept on account of and at the
expense of the owner. He cannot release himself from responsibility
by abandoning the goods or turning them over to one not entitled to
receive them.
Fisk v. Newton, 1 Denio 45. If the freight
consist, as in this case, of livestock, the carrier will not, under
the circumstances mentioned -- that is, when the consignee is
absent or cannot after reasonable inquiries be found, and no one
appears
Page 123 U. S. 735
to represent him -- relieve himself from responsibility by
turning the animals loose. He must place them in some suitable
quarters where they can be properly fed and sheltered, under the
charge of a competent person as his agent or for account and at the
expense of the owner. Turning them loose without a keeper or
delivering them to one not entitled to receive them would equally
constitute a breach of duty for which he could be held accountable.
These principles are firmly established by the adjudged cases, and
rest upon obvious grounds of justice. Angell on Carriers §
291.
The railroad company, defendant below, should therefore have
given necessary instructions to the drove-yard company, which was
its agent for the custody and care of the cattle, respecting their
delivery -- that it should be made only upon the order of the
consignee, who was also the owner and shipper. The joint waybills
given by the two companies at Waverly, equally with the original
receipts given at Chicago, disclosed his name. Those joint waybills
were for the guidance of, and were used by, the conductors of both
companies.
In the case of
The Thames, 14
Wall. 98, it appeared that the purchaser of cotton at Savannah
delivered it there to a vessel to be carried to New York, taking
bills of lading, in which it was stated that the cotton was shipped
by one Gilbert Van Pelt, and was to be delivered "unto order, or to
his or their assigns." Van Pelt was a member of a firm in New York
for which he purchased the cotton. Against the shipment he drew a
draft on his firm, payable fifteen days after sight, and delivered
it, with the bills of lading, to parties who obtained a discount of
the draft from a bank in Atlanta. The draft and bills were at once
forwarded to New York to an agent of the bank, to procure their
acceptance by the firm. Before the draft became due, the vessel
arrived at New York, and gave notice to the firm of the arrival of
the cotton. That vessel had previously brought cotton in the same
way for the firm, and the master of the vessel, knowing that the
cotton was intended for the firm and having no information from the
bank's agent or from any other source of any other consignee or
claimant, delivered to it the cotton, taking its receipt.
Page 123 U. S. 736
When the draft became due, two weeks afterwards, and was not
paid, the cotton was demanded of the owner of the vessel by the
bank's agent. In the action which followed, it was contended by the
owner that the delivery was justified and that the vessel had
discharged its obligation, but this Court held that, though the
delivery had been made in ignorance of any outstanding claim to the
cotton, it was nevertheless a breach of the contract of
affreightment, and that the agent of the bank could libel the
vessel, which was bound for the proper delivery of the property,
for the loss sustained. And the Court said:
"By issuing bills of lading for the cotton, stipulating for a
delivery to order, the ship became bound to deliver it to no one
who had not the order of the shipper, and this obligation was
disregarded instantly on the arrival of the ship. And it is no
excuse for a delivery to the wrong persons that the endorsee of the
bills of lading was unknown, if indeed he was, and that notice of
the arrival of the cotton could not be given. Diligent inquiry for
the consignee, at least, was a duty, and no inquiry was made. Want
of notice is excused when the consignee is unknown or is absent or
cannot be found after diligent search, and if, after inquiry, the
consignee or the endorsee of the bill of lading for delivery to
order cannot be found, the duty of the carrier is to retain the
goods until they are claimed or to store them prudently for and on
account of their owner. He may thus relieve himself from the
carrier's responsibility. He has no right under any circumstances
to deliver to a stranger."
The direction on the receipts given at Chicago, and on the
waybills of the first shipment from Waverly, to "notify J. & W.
Blaker" in no respect qualified the duty of the carrier to deliver
the animals to the order of the consignee. If they were consignees,
the direction to notify them would be entirely unnecessary, because
the duty of the carrier is to notify the consignee on the arrival
of goods at their place of destination. In the case of
Furman
v. Union Pacific Railway Co., 106 N.Y. 579, recently decided
by the Court of Appeals of New York, it was held that placing in a
bill of lading a direction to notify certain persons is a plain
indication, in the
Page 123 U. S. 737
absence of further directions, that they are not the consignees.
The earlier case of
Bank of Commerce v. Bissell, 72 N.Y.
615, is also in point on this subject. There, the action was
against the defendants as common carriers upon a bill of lading of
a boatload of wheat shipped at Buffalo for transportation to New
York on account and order of the plaintiff. The bill of lading
contained this direction: "Notify E. S. Brown, New York," and was
given to the bank as security for a draft drawn by the shippers on
Brown. With the draft annexed, it was forwarded to New York with an
endorsement by the cashier of the bank that the wheat was subject
to payment of the draft, and was to be delivered only on such
payment. On the arrival of the wheat in New York, it was delivered
to Brown, and he became insolvent before the draft fell due. It was
held that the defendants were not warranted by the bill of lading
in delivering the wheat to Brown, and that the discount of the
draft and its acceptance did not justify the delivery. It was also
held that the fact that the plaintiff did not endorse over the bill
of lading to anyone in New York authorizing him to receive the
wheat did not relieve the defendants from the duty of holding it as
plaintiff's property or subject to its lien; that they could have
given notice to Brown, "and if neither he nor anyone else came with
authority to take delivery, they could, and it was their duty to,
have put the wheat in store."
It follows from these views that the defendant, the North
Pennsylvania Railroad Company, in allowing the cattle to go into
the possession of the Blakers, through its agent, the drove-yard
company, without the order of the consignee, who, as stated above,
was also the owner and shipper, became responsible for their value
to the Commercial National Bank, which held his orders endorsed on
the receipts for the shipments. It is true that the original
receipts only bound the Michigan Central Railroad Company to carry
safely the animals on its own road and deliver them safely to the
next connecting line to carry on the route beyond.
Myrick v.
Michigan Central Railroad Co., 107 U.
S. 102. But the last carrier in the connecting lines was
bound to deliver the animals at the place of
Page 123 U. S. 738
destination, and to the consignee there, or to his order, if
they were made known to it on receiving the freight from the
preceding connecting company. In this case, there is no question
that the company had such knowledge when the cattle were received.
The destination and the name of the consignee appear upon the
waybills given at Waverly. There were only two places at which the
cattle were, on their way from Chicago, reshipped -- that is, taken
from cars and, after a short interval of rest, replaced. Waverly
was one of these places, and when they were reshipped there, these
waybills, with a designation of the destination and consignee of
the cattle, were made out.
The endorsement by Myrick to the plaintiff, the Commercial
National Bank of Chicago, of the receipts taken on the shipment of
the cattle transferred their title and gave to the bank the right
to their possession and, if necessary, to sell them for the payment
of the drafts. The fact that the railroad company at Philadelphia
had been in the habit of delivering cattle transported by it to the
Blakers through the drove-yard company, without requiring the
production of any bill of lading or receipt of the carrier given to
the shipper or any authority of the shipper, in no respect relieves
the company from liability for the cattle in this case. It was not
shown that the shipper, or the bank which took the draft against
the shipment, or its correspondent at Newtown in Pennsylvania, had
any knowledge of the practice, and therefore, if any force can be
given to such a practice in any case, it cannot be given in this
case, where the party sought to be affected had no knowledge of its
existence. In
Bank of Commerce v. Bissell, cited above,
the defendants offered to prove a custom in New York to deliver
property under bills of lading to the person who was to have notice
of its arrival. The evidence was rejected, and the Court of Appeals
held that there was no error in its rejection, stating that if the
custom were established, it could not subvert a positive
unambiguous contract.
Numerous other assignments of error are presented for which a
reversal of the judgment is asked, but the propositions of law
embodied in them were not urged in the court
Page 123 U. S. 739
below, and therefore the fact that the court did not rule upon
them constitutes no ground for interference with the judgment. The
one exception taken was to the direction of the court upon the
evidence to find a verdict for the plaintiff for the amount
claimed. To that direction the defendant excepted, and it is at
liberty to show either that there was sufficient evidence to go to
the jury or that questions of law apparent upon the record would
control the case in opposition to the direction. But this it has
not done. As before stated, there was no conflict in the evidence,
and the law upon it was clearly with the plaintiff.
The judgment is therefore
Affirmed.
