Converse v. Norwich & New York Transportation Co. , 33 Conn. 166 ( 1865 )

Butler, J.

The evidence in this case is very clear, and free from contradiction. Upon a careful and deliberate consideration of it, we are satisfied that it did not justify the jury in finding a contract to carry the wool to Stafford, alone, or in company with the northern road; and that it does show an actual delivery to that road, as an independent and next carrier in a line, and a performance of all that the defendants impliedly undertook to do; and therefore that the verdict can not be sustained.

1. In the first place there is no such evidence of a contract to carry the wool to Stafford as will support the first count of the declaration.

The defendants were a corporation organized under the joint stock law of this state. Their articles of association are in evidence. The object of their association is therein declared to be the transportation of mails, freight and passengers between New York and New London and Norwich, or other places, &c.” The transportation contemplated from New York was intended to be and was in fact by water. By the articles the terminus where it was to end, and whether on the coast or inland, is not fixed definitely. But that is unimportant in this connection. Their business as then actually and permanently established was conducted by steamers from New York to New London only, and a delivery there to citizens of the place or the railroads which had their termini at that point. That was the fixed course and usage of their business as carriers. In the absence of any express contract the law implies, from the delivery and acceptance of goods for carriage, a contract to carry according to the course and usage of the carrier’s business; and if marked for a point beyond his terminus, to deliver there to the next carrier on the route. Here there was no express contract. No verbal agreement was made. The wool was received, and a written receipt" given in these words : — “ Deceived from John M. Pendleton & Co. in good order, on board the Norwich and Worcester boat, bound for Stafford, ct., the following packages &c.” That does not import a promise to carry to Stafford. Read in the light of surrounding circumstances, it is a mere acknowledgment of the receipt of the wool, and that it and not the steamer was “ bound for,” that is, directed to — ■ marked for — Stafford, and the plaintiffs’ case would have been just as strong if the simple fact of the receipt of the wool and the marks had been proved by- other and verbal evidence. The receipt given in Elmore v. The Naugatuck Railroad Company was much stronger and yet holden a mere acknowledgment.

Nor is there any unexplained evidence that the defendants held themselves out in any manner as carriers to Stafford, and that the plaintiffs were thereby misled. There was no advertising or other representation to that effect nor was pay taken in advance for the whole distance. There was evidence of the carriage at prior times of other goods for the plaintiffs upon the boat of the defendants and over the northern road, and that the defendants made out and collected the bills for their carriage the whole distance. Unexplained that would tend strongly to show that such was their established course of business. But that is explained, and it is shown that in so collecting the freights on the railroad, they were in fact but the agents of that road, and collecting as a matter of convenience to both. There is nothing else to show a contract to carry to Stafford, and it is a case of mere reception to carry according to the fixed course of the business as conducted by the carrier.

The question whether the mere receipt of goods marked for and destined to a place beyond the terminus of a carrier’s route, is prima facie evidence of a contract to carry to the place of destination, is not now an open one in this state." It has been settled by the three cases of Hood v. The N. York & N. Haven R. R. Co., 22 Conn,, 1; Elmore v. The Naugatuck R. R. Co., 28 id., 457; and Naugatuck R. R. Co. v. The Waterbury Button Co., 24 id., 468. Not indeed in accordance with the law as recognized in England, but adversely, and in accordance with what is deemed sound policy for this extended country, and the current of decision here, especially in the large commercial states, where the most lines and the greatest amount of carriage exist.

But it is claimed that if there was no express contract there was an implied one ; because, by reason of their connection with the northern road, the defendants were carriers in fact to Stafford. If the fact was so the defendants would be liable. But the fact was not so, and the evidence did not justify the jury in finding it. There was a contract between the corporations which was in evidence. It did not establish and was not intended to establish between them any community of profit and loss, or of management or expense, and did not constitute them partners. Each was entitled under it to continue to transport independently, both in relation to the management of and the expense upon their own routes, and between their respective termini. It was an agreement relative to the amount of their respective charges, or rather respecting a proportionate division of the charges, on through freight and on that only, and for certain conveniences for the mutual, delivery of such freight. It did not and could not make the defendants so carriers in fact to Stafford, that the law will imply a contract by the defendants to cany there from the mere receipt by them of the goods marked for that place,

2. The defendants insist in the second place, that if a contract could be found or implied from the facts as in evidence, they could not be holden liable, because their directors had no legal power to make such a contract which would bind the company, and they rely on the case of Hood v. The N. York & N. Haven R. R. Co., 22 Conn., 502. The plaintiffs insist that the case is in .conflict with the whole current of authority both in England and in this country and is not law.

That case can not be overruled or shaken on the ground that the principles there applied áre technically wrong. The principle is fundamental and elementary, that the power of a corporation is limited to the powers conferred by the charter, and such as are necessarily incidental thereto. The courts of other states in the cases cited have not questioned or disregarded that principle. But corporations have within a few years under general laws become so numerous, and are so connected with and so control the business of the country, and even its religious and benevolent agencies, that the courts have gradually come to think it necessary to relax the techni-. cal and theoretical strictness of the legal principles applicable to them, and subject them to the same liabilities for the acts of their agents as natural persons, so far as it can be done practically and consistently with their charters. The very rapid increase of these corporations, which now monopolize the business of land carriage and a large share of that which is done by water, and the equally rapid increase in the quantity of freight which they carry destined to points beyond their chartered termini, render it desirable for them and the business community that they should have power to make business connections and contracts with each other, and assume a joint responsibility for carriage beyond the termination of their routes, and the tendency of the courts is almost universal to recognize their power to do so, where the purpose is auxiliary, beneficial, and within a reasonable limit, as an intended or necessary and incidental power, by a liberal construction of the legislative grants. Whether we' ought so to regard these changes and follow this prevailing tendency and relax the strictness of the rule by such a liberal construction in respect to the intention of the legislature or the necessity for such an incidental power, either because it is wise to do so or for the sake of uniformity, or whether we should hold to the maxim of stare decisis, and adhere to the old and strict construction adopted in the case relied upon, it is not necessary now to determine. There is no contract to carry beyond the terminus of the defendants’ route proved by the evidence, and the question is not a material one in the case.

8. The remaining question, namely, whether there was or not a performance of the contract set up in the second count, and an actual delivery to and acceptance by the northern road, so that the responsibility was shifted on to that corporation, is one we have deliberately considered, and feel constrained to decide in the affirmative.

It must be conceded that the defendants had transported the wool to their terminus, and carried and placed it in the common depot by the side of the railroad track, at a spot where they by usage were expected by the northern road to place it, and that no other or further act of carriage or actual manual possession was or could be expected of them. And so it must be conceded that actual manual possession had not been taken by the northern road, nor is there any direct evidence of an expi'ess agreement that the carriage to, and placing at the side of the track, in the depot, should) be deemed a delivery to the road. And, at first sight, it would seem just and equitable to hold that the carriage in fact was finished by the transportation company, and that the goods were in deposit by mutual arrangement in a joint depot, to await an actual manual reception by the northern road at a future convenient hour ; and so, looking to the equities of the case and the large amount involved in the other cases dependent upon the decision of this, we should be very willing to hold, if we could do so consistently with principle. But there are insuperable difficulties in such a view of the case.

We have no difficulty in determining, indeed we must hold, that there was a mutual agreement, or tacit understanding equivalent to such an agreement, that the transportation company should place the through freight at that precise spot, and that the northern road should take it from thence at a time convenient to them. The construction of the depot and the uniform usage are conclusive of it. The depot was constructed with a platform by the side of the track for the reception of goods to be taken from or put into the cars; and on that platform the railroad company, in the first and every instance of delivery by them, placed their freight, and the transportation company at their convenience took it away and carried it on board their boat. And so the transportation company in like manner, in the first and every instance, placed there the freight for the northern road; and they at their convenience put it in their cars and took it away. And the usage was precisely the same with the Worcester road. It would be a forced construction' of this usage, or rather the agreement inferable from it, to say that an intermediate joint deposit was contemplated. Moreover the depot was not the joint depot of the two parties only, or erected for that purpose only, but the joint depot of three, including the Worcester road, and erected for and used by each, not only for the mu-, tual delivery and reception of through freight, but independently in transacting their independent local business. Again the0 defendants were carriers by water, and their place for landing and delivery must necessarily or would naturally be a wharf. This depot was a wharf, covered and enclosed indeed, but still a wharf and the only one occupied by them. Upon this wharf and into the enclosure the northern road laid their track for the delivery and reception of freight to and from the transportation company. Both parties then contemplated a delivery and reception on this wharf and in this enclosure, and obviously in the precise manner actually pursued. If a carrier by water notifies the consignee of his arrival and readiness to deliver.the goods, and the consignee says to him “ land them in a particular place, on a particular wharf, and I will take them away at my convenience,” and he so lands them, it is a delivery. And what he says in a particular case expressly he may say for all cases and by his conduct or by usage. And so these connecting carriers practically if not expressly said to each other. It is clear then that both the transportation company and the northern road contemplated that a placing of freight by either intended for the other upon that platform was all that either was to do by way of delivery of their .freight to each other ; that they did not contemplate such placing as an intermediate deposit, to be watched by the party depositing, or as a joint deposit, at-the joint risk and in the joint possession of both; but that they relied on the enclosure as a protection, and considered the placing of the freight in the usual spot upon the platform as a delivery.

The minor facts respecting the time and manner of delivering the way-hills — the examination of the freight and checking of the way-bills to be sure that all had been delivered — the proportionate extent and the manner of their joint use and possession of the depot — the looking up or paying for missing goods — and the practice of letting the Saturday freight remain on the platform until Monday morning — are only material as they bear upon the great question, namely, what was it agreed or understood between the defendants and the northern road should constitute a delivery from one to the other. It is sufficient to say that they all tend to confirm rather than to rebut the inference drawn from the original construction of the depot and platform, and the uniform practice and usage respecting their use.

A new trial must be advised.

In this opinion the other judges concurred.