Opinion
Decided April 12, 1926.
Railroads — Shipment wrongfully delivered to other than consignee — Goods consigned to agent of company financing producer — Parties — Buyer not necessary defendant in action by finance company against railroad — Measure of damages — Consignor entitled to recover full value of consignment — Admission of incompetent evidence not prejudicial, when.
1. In action by company which had financed production of certain furniture against railroad for wrongful delivery to buyer of shipment consigned to plaintiff's agent, refusal to permit buyer to be made a party defendant under Section 11318, General Code, held not error.
2. Consignor, financing production of furniture to whose agent shipment was consigned, held entitled to recover full value of such consignment from railroad company which wrongfully delivered it to buyer, irrespective of amount which buyer had paid manufacturing company.
3. Admission of incompetent evidence held not prejudicial to carrier in action for unauthorized delivery of goods to another than consignee.
ERROR: Court of Appeals for Hamilton county.
Messrs. Maxwell Ramsey and Mr. Thomas H. Morrow, for plaintiff in error.
Mr. W.F. Fox and Mr. E.H. Brink, for defendant in error.
The Guarantee Finance Securities Company brought an action in the superior court of Cincinnati against the Pittsburg, Cincinnati, Chicago St. Louis Railway Company for breach of contract in the failure to deliver two carloads of furniture consigned to Edward Brink, an agent of the plaintiff company. The two cars were delivered to the J.H. Vanden Boom Furniture Company at Kansas City. Plaintiff recovered a judgment for the value of the furniture in the trial court, and error proceedings are now brought to reverse that judgment.
The errors complained of are the refusal of the trial court to permit the J.H. Vanden Boom Company to be made a party defendant under Section 11318, General Code, and that the damages were excessive, in that, as to the first car, it was claimed the damages could be only nominal, as the goods were fully paid for by the Vanden Boom Company, and, as to the second car, that the defendant company was excused from liability because that car was taken from the railway company by legal proceedings.
It appears from the evidence that the Seymour Cabinet Company, of Seymour, Ind., entered into a contract with the J.H. Vanden Boom Company, of Kansas City, for the manufacture and sale of certain furniture. The Seymour Cabinet Company, not having sufficient money to finance the purchase of materials and cost of production, entered into an arrangement with the Guarantee Finance Securities Company to advance the money necessary to purchase material and to provide for pay roll and other expenditures necessary to produce the furniture. Certain post-dated checks of the Vanden Boom Company were turned over to the finance company, and, as the furniture was ready for shipment, it was delivered to one Brink, the agent of the finance company, who shipped it as the consignor, to himself, as consignee, at Kansas City, with instructions to notify him at Cincinnati of the arrival of the cars at destination. The first car, on arrival at Kansas City, was delivered to the Vanden Boom Company, without notice to the consignee. The second car was shipped, consigned in the same manner, and the railway company, while it was in transit, was ordered by the consignor to divert the shipment to St. Louis. The railway company, by its agents, notified the consignee that it had been so diverted. This shipment was not diverted, but was delivered on tracks near the Vanden Boom Company's warehouse, and that company, by attachment proceedings, filed but never concluded, secured the property; the return showing that the goods were attached as the property of the Seymour Cabinet Company.
While Brink was named as a party defendant, no service was ever had or attempted to be had upon him, or upon the Securities Company. In fact, it appears as if the agents of defendant were endeavoring to assist the Vanden Boom Company to secure the contents of the car without the knowledge of Brink.
The contract was made by the railway company and Brink as agent for the Securities Company. He was named as consignor and as consignee. His authority to make the contract with the defendant was not questioned, and the rights of the parties must be determined by the contract, as has been frequently held by this and other courts. Other companies, not parties to the contract, cannot interject their contentions or differences in this matter, and were properly excluded. The superior court was therefore not in error in excluding the J.H. Vanden Boom Company as a party defendant.
The next question is as to the measure of damage.
It is contended that the plaintiff had only an interest for money advanced, and that certain amounts due from the cabinet company to the Vanden Boom Company should be deducted. If these questions could be raised by the defendant, it would at once become apparent that the Vanden Boom Company and the cabinet company could come into the case.
If the measure of damage was other than the full value of the shipment, some other person or company would be entitled, as against the railway company, to this value, and entitled to sue therefor. It is apparent that if such an action was brought by such other party the railway company would answer that it had no contract with such party, as a complete defense.
Our holding is that there was a specific contract between the defendant and the agent of the plaintiff, as shown by the bill of lading; that the defendant breached that contract, and deprived plaintiff of the entire shipment. The damage therefore is the value of the shipment.
Incompetent evidence was admitted, but such evidence could in no wise be prejudicial to the defendant, the plaintiff in error here.
Finding no errors prejudicial to the plaintiff in error, the judgment of the superior court of Cincinnati is affirmed.
Judgment affirmed.
HAMILTON and CUSHING, JJ., concur.