
    Wirch, Respondent, vs. Chicago, Milwaukee & St. Paul Railway Company and Byram and others, as Receivers, Appellants.
    
      November 5
    
    December 4, 1928.
    
    
      For the appellants there was a brief by H. J. Killilea and Rodger M. Trump, both of Milwaukee, and Barber & Keefe of Oshkosh, and oral argument by Mr. Trump.
    
    For the respondent the cause was submitted on the brief of Wilbur E. Hurlbut of Omro.
   Eschweiler, J.

We can find no proper legal support for this judgment. The car was ordered by the shippers, Callieri Brothers, and it was delivered to and held at Omro station subject to their orders for an interstate shipment. The plaintiff cannot be considered as occupying the relationship of shipper so far as the railroad was concerned. Callieri Brothers al©ne had the lawful right to have the hay shipped and to require the defendant railroad company, under its duty towards shippers, to make out the bill of lading as it did and forward .the car according to their instructions. Contracts of this kind are no longer matters of private contract between carrier and shipper except on the prescribed forms. Chicago & N. W. R. Co. v. J. I. Case Plow Works, 173 Wis. 237, 240, 180 N. W. 846.

Even conceding that there vjas a sufficient consideration to support the claimed agreement between plaintiff and the station agent on behalf of defendants, a point upon which we express no opinion, nevertheless the defendants could not make a lawful contract with the plaintiff, an outsider, to in any way interrupt or interfere with their statutory and common-law duties as common carriers towards shippers. As against the rights of shippers the defendants could not contract to assume the inconsistent responsibility of aiding a third person, dealing with the shippers, or of substituting its aid for the remedies the law gives to such third person. The plaintiff therefore has no right to recover on any theory of a contract between him and the common carrier as to the shipment of this hay.

Neither can we sustain the judgment in this case as for a tort because of violation by defendants of any duty or obligation they or it owed or could lawfully assume to or towards the plaintiff.

By the Coitrt. — Judgment reversed, and cause remanded with directions to dismiss the action.  