Thomas W. Irwin, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent

Thomas W. Irwin, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent. (Argued December 14, 1874; decided December 22, 1874.) This was an action to recover damages for the loss, while in transit, of a quantity of iruit trees, which the complaint alleged were delivered to the defendant at Rochester, under an agreement to transport to Leavenworth, Kansas. The action was tried before a referee, who gave judgment for plaintiff; the judgment was reversed at G-eneral Term; the order did not specify that the reversal was upon questions of fact. It was held, however, that the most important findings of fact of the referee (which were duly excepted to) were contrary to the uncontradicted and conclusive testimony, and that the referee refused to find material facts disclosed by similar testimony, and that a question of law was therefore presented, reviewable in this court. The facts, as here found, were these: The defendant, and other railroad corporations, had associated together in • running a fast freight line, known as “ The White Line,” from New York city to St. Louis, each agreeing to forward over its line, and receive its ratable proportion of the charges. This line did not take freight from intermediate places on defendant’s road, between Albany and Buffalo. But freight from intermediate places, to be shipped west by said line, was treated as local freight to Buffalo, and, upon its arrival there, and delivery to the connecting road, was considered as freight of the White Line. In such case, defendant collected, of the party to whom the freight was delivered, its charges for transportation to Buffalo, and had no part of the charges beyond. The White Line had an agent at Rochester, with whom a bargain was made for the transportation of the trees by his line. The trees were delivered at defendant’s depot, marked “ T. W. Irwin, Leavenworth, Kansas, care of White Line, Buffalo.” Plaintiff received receipts therefor, the blank forms being filled up by himself, by which defendant agreed to transport the property to its “ warehouse at Buffalo, ready to be delivered to the party entitled to the same,” and that the company was not to be held liable for loss or damage by any other carrier, “ after the same has been loaded, shipped or sent from the company’s warehouse aforesaid.” The trees were shipped in one of the White Line cars, and went through from Rochester to St. Louis without change of cars. At Buffalo it was delivered to the Buffalo and State Line Railroad Company, an associate in the White Line. Defendant, in accordance with a general regulation as to freight upon any property going beyond the termination of its road, required payment of freight, of a guaranty of payment when the property reached its destination. The latter was given at St. Louis, where the trees arrived in good order; they were delivered to the Missouri Pacific railway whose road was the ordinary route for transportation of freight from St. Louis to Leavenworth. On arriving at the latter place, the trees having been carried in open cars, were found frozen and worthless. Held, that defendant was not liable; that plaintiff must have known and assented to the terms of the contract between him and defendant, which determined the extent of the latter’s liability and which was fully performed by it; that defendant was not liable under any other contract, as the local agent of the White Line could only bind a member of that line when he contracted for business in which the member, as such, was interested and bound to assist in performing; he could not bind defendant for the safe carriage of property taken up at Rochester, an intermediate station, as defendant was not bound to carry the freight as a member of this line; any contract, therefore, made by the agent for the carnage of the freight over defendant’s road was unauthorized and did not bind it. Also, held, that the requirement of a guaranty under the circumstances, did not affect defendant’s liability. J. C. Cochrane for the appellant. A. P. Laning for the respondent. [MAJORITY — Folger, J.,] Folger, J., reads for affirmance. All concur. Judgment affirmed.