
    Johann H. Schroeder v. The Hudson River Railroad Company; John Otte v. The same; Heinrich C. Duerkop v. The same.
    A contract by a railroad company, for the transportation and delivery of goods, to a point beyond its own limits, is settled to be a valid contract by the Court of Appeals.
    When goods were delivered in New York to the company’s agent, to be carried to Chicago, and they were not carried there, the defendants were held liable, although the plaintiff had made no demand of them at that place. It appeared that the company had not an office or an agent there of whom demand could be made.
    The duty of a common carrier is, to deliver the goods to the owner or his agent personally, and for that purpose to seek him at the place of delivery. He is only relieved from this duty by special contract, or general usage.
    The party signing the freight receipt was found not to have any special authority from the company, nor any authority to carry freight to, or deliver it beyond the city of Albany; but it was proven that he was their general agent, to receive all freights offered, and to sign receipts therefor. And by the pleadings it was admitted, that the defendants were common carriers of goods as well beyond as to Albany. Sold, that the company was sufficiently bound by such agent’s receipt.
    
      Sold further, that as it did not appear that the goods were transported even to Albany, that the company would have been in all events responsible, for that neglect.
    (Before Dueb, Boswoeth and Siosson, J.J.)
    October, 1855.
    Appeal on behalf of the defendants from a judgment entered upon the direction of a Judge for the sum of $507.72. The action was tried before the Judge without a jury, a jury trial having been waived in open court by the respective parties.
    By a written consent the two other causes of Otte and of Duerkop, against the company, were to be tried upon the same evidence, and at the same time.
    Judgments have been entered in these cases, and an appeal is taken in each.
    The decision of the Judge at Special Term contains a statement of the material facts, and is as follows:—
    
      Special Term, March 28, 1855. Before Bosworth, Justice.
    ■—This action having been tried before the undersigned, one of the Justices of said court (a trial by jury having been waived, by the consent of said parties) and having heard the testimony offered by both parties, and their counsel thereupon, I find the facts, established by the evidence, exclusive of those admitted by the pleadings, to be as follows—that is to say:
    
      First. On the 14th of November, 1853, at the city of New York, the plaintiff delivered to the defendants, at their depot in said city, six boxes and their contents, to be forwarded to Chicago, Hlinois, and to be sent forward from New York on the defendants’ railroad. The said boxes and contents,-when so delivered, were received on behalf of the defendants by Abraham Pierce, who at that time was a station master, and general agent of the defendants at the depot where the boxes were delivered. He was not the freight master, but was an employee of the defendants under him, and was authorized to receive all freight delivered up to a certain hour of the day, and sign papers evidencing the delivery of freight to, and the receipt of it by, the defendants, to be forwarded on their railroad, and to sign such paper as that secondly hereinafter copied and signed “ Pierce.”
    
      Second. The said Pierce, on the delivery of said six boxes and their contents to the defendants as aforesaid, executed and delivered to said Schroeder, two several paper writings, in the words and figures following, that is to say:
    “Received, New York, November 14th, 1853, in good order, on board the Hudson River Railroad, six cases marked Schroeder, Chicago, Illinois, to be forwarded by us to Chicago.
    “ 6 Cases Goods,
    “ Marked Schroeder,
    “ Chicago,
    “Illinois. Ab’m Pierce, Agent.”
    “Received from J. H. Schroeder, six boxes, containing emigrant luggage, marked Schroeder, Nos. 1 to 6, to be forwarded per Hudson River Railroad freight train to Chicago, Illinois.
    “New York, Nov. 14th, 1853.
    “ Pierce.”
    
      
      Third. Only two of these six boxes and their contents were the property of the plaintiff and this fact was disclosed to Pierce when the six boxes were delivered to the defendants aforesaid. The two boxes belonging to the plaintiff contained the articles described in the complaint, and the said two boxes, and their contents, at the time they were delivered to and received by the defendants, on the 14th of November, 1853, were worth the sum of three hundred and eighty-five dollars.
    Nothing was paid to the defendants, or to any of their agents, for or on account of the forwarding or transhipment of said boxes by the plaintiff. Nor was any thing said by either party as to the amount of freight to be paid for such forwarding or transportation.
    
      Fourth. The plaintiff was an emigrant from Europe, and had then recently arrived in the city of New York. He left the boxes in question with defendant’s said agent, on the 14th of November, 1853, he knowing at the time that the plaintiff desired to have the boxes and their contents taken to Chicago, and that he intended starting immediately for the same place. He left New York for Chicago on the same day, and travelled from New York to Albany on the railroad of the defendants. After arriving at Chicago, the plaintiff went several times to the different railroad depots, and to a great many warehouses in Chicago, and looked for these boxes and could not find them. The defendants, on the 14th of November, 1853, had not, and since then have not had, prior to the commencement of this action, any office or agent at Chicago. The said two boxes and their contents were not, nor was any part thereof, carried by the defendants, or by them caused to be carried to Chicago, so that a delivery of them could be there made to the plaintiff.
    
      Fifth. After the plaintiff, upon the search and examination aforesaid, was unable to find the two boxes and contents at Chicago, and before the commencement of this action, he caused the paper writing secondly hereinbefore copied, to be presented to and a demand to be made upon the defendants at their office and place of business in the city of New York, for the delivery to the plaintiffs of said two boxes and their contents. In answer to such demand, the defendants, by their authorized agent, stated that they could not make a delivery of the boxes and contents, but they would make a search for them. Ko further application was made to the defendants for a delivery of said boxes and contents, nor was any other demand for a delivery made than has been stated, before this action was brought.
    
      Sixth. The defendants are a corporation, created by an act of the legislature of the state of New York, passed May 12th, 1846, entitled, “An Act to authorize the construction of a Railroad from New York to Albany,” and the acts amendatory of the same, which several acts were read in evidence, are to be deemed a part of this case, and may be read from the published statutes of this state.
    Upon evidence given, on his cross-examination, by a witness introduced by the plaintiff, and not objected to, I further find, that the said railroad company receive passengers’ luggage to be carried and delivered beyond the terminus of their road, but not luggage or freight of the description of the property in question.
    That the said Pierce had no authority to make any special contracts, nor had he any authority to make a contract on behalf of the defendants to carry freight to, and deliver it at points beyond the city of Albany.
    But neither the plaintiff nor said Schroeder knew, or had any notice,- that it was not according to the common course of the defendants’ business, for them to contract to carry and deliver property like that in question beyond the terminus of their road, nor did the plaintiff, or said Schroeder know, or have any notice, that said Pierce was not authorized by the defendants to contract for the carriage of property like that in question, or of any kind of freight from New York city to Chicago, and for its delivery at the place last named.
    Before the testimony was - unconditionally closed, the plaintiff stated and insisted, that the defendants were, in fact, common carriers beyond Albany, to places to which they might undertake and agree to carry and convey goods and merchandise, and so held themselves out to be; that these facts were admitted by the pleadings, and that the only questions to be tried were, whether they had contracted to carry the property in question to Chicago and deliver it there, and had broken such contract.
    The defendants, although denying that the admission by the pleadings was as extensive as- the plaintiff claimed, moved for liberty to amend their answer, so that it should admit they were common carriers between New York and Albany only, and should deny each and every other material allegation in the complaint. The court gave leave to so amend, on condition of the defendants paying the costs of the term, and consenting that the trial be postponed to the next term. The defendants declined to avail themselves of permission to amend on such terms, and the counsel of both parties proceeded to sum up the cause, without any evidence being thereafter introduced by either party.
    My conclusions, as to the law, upon the facts found as aforesaid, and upon those admitted by the pleadings, are as follows, that is to say:
    
      First. The defendant is capable of making a contract valid in law, for carrying of goods from the city of New York, and the delivery of them at Chicago. (4 Selden, 37.)
    
      Second. The contract actually made, determining it in the light of both of the papers executed by Pierce, and of the facts of the case, was a contract to carry the property from New York to Chicago, so that a delivery could be made of it there, on the payment of a reasonable or the customary compensation therefor, to be paid on the delivery of the goods. (8 Mees. & Welsby, 421; 3d Sandf. 610, and 1 Smith, 234; 6 Hill, 157; Oranch v. London and North- Western R. R., 25 Eng. L. and Eq. 287.)
    
      Third. The fact proved, that the defendant did not receive property like that in question, to be carried by them to, and delivered at a point beyond Albany, cannot, in this case, be made available to them against an express admission in the pleadings to the contrary. (Code, § 168:)
    As they, in fact, did business as common carriers, between New York and Albany, and any points beyond Albany, to which they undertook to carry such property as that in question, and other freight, the only further practical question is, whether the contract made is their contract.
    It is proved, by evidence given, that Pierce was not authorized to make such a contract as I have decided this to be. But it being proved that he was their general agent, to receive all freight offered during certain hours of the day, and to sign papers acknowledging the receipt of it, and stating to what place it was to be forwarded, and in such form as that of one of those given in this case, and there being no attempt to show that any person had any authority to make contracts which he could not properly make, during the hours when it was his business and duty to receive freight, strangers are not to be prejudiced, who make with him such contracts as the defendants are in the habit of making, merely because they do not know the precise extent of his powers, especially when he holds himself out by his acts as fully authorized to make them, and was authorized to make such contracts as one of the papers signed by him properly imports.
    As no objection appears to have been made when the receipt, signed “Pierce,” was presented at the office of the defendants, and the goods demanded, that he had no authority to make such a contract as that imported; and as the fact is found, that he was a proper person to sign a paper like that; it seems evident, to me, that the case comes to this narrow point: that the defendant’s position is, that Pierce was authorized to make a contract like that, but that, in legal effect, it is a contract to carry to Albany only, and there deliver it to a proper forwarding line, according to the established course of business. If authorized to sign such a paper, he was authorized to make such a contract as that imported, under the circumstances under which it was given. In law, upon the facts found upon the evidence, and upon those admitted by the pleadings, the contract is binding upon the defendants, and is their contract, and the plaintiff is entitled to a judgment for three hundred and eighty-five dollars.
    To which decision the defendant’s counsel offered the following exceptions:—
    1. The defendants except to the decision of the Judge, that the defendants are capable of making a contract valid in law for the conveyance of goods from the city of Hew York, and the delivery of them at Chicago.
    2. The defendants further except to the decision of the Judge, that the contract actually made was a contract to carry the property from Hew York to Chicago, so that a delivery could be made of it there, on the payment of a reasonable or the customary compensation therefor, to be paid on the delivery of the goods.
    3. The defendants further except to the decision of the Judge, that the fact proved that the defendants did not receive properly like that in question, to be carried by them, to and delivered at a point beyond Albany, cannot in this case be made available to them, against any express admission in the pleadings to the contrary.
    The defendants also except to the decision of the Judge, that the pleadings do expressly admit that the defendants received property to be carried and delivered at a point beyond Albany, and that they did business as common carriers between Hew York and points beyond Albany.
    4. The defendants further except to the decision of the Judge, that strangers are not to be prejudiced who might make with the agent, Pierce, such contracts as the defendants are in the habit of making, because they do not know the extent of such agent’s powers.
    5. The defendants further except to the decision of the Judge, that the demand, in this case, of the goods in question, was made of the proper person and at the proper place; also, that the agent, Pierce, was authorized to sign such a contract as was proved, or that became binding on the defendants, further than to carry to the city of Albany. The defendants also except to the decision of the Judge, that the plaintiff had the right to recover on the facts proved.
    6. The defendants further except to the decision of the Judge, in deciding that the commission, produced on the part of the plaintiff, was admissible in evidence.
    Fullerton, for defendants and appellants, argued the exceptions taken to the decision.
    
      May, for the plaintiff.
   By the Court, Duer, J.

The question whether a railroad company can make a valid contract for the transportation of freight beyond the limits of its own road, as their limits are fixed by its charter, as we understand the decision of the Court of Appeals, in West v. The Rensselaer and Saratoga R. R. Co., (4 Selden, 37,) must now be regarded as finally settled. It is only upon the supposition that such a contract is valid, that the decision in that case can be explained. It is, therefore, needless to refer to the recent decisions in England, or to prior decisions in onr own courts, which, countenance, if they do not establish, the same doctrine.

But, had the law been otherwise settled, we should still be compelled to say, that, upon the finding of the Judge at Special Term, and the evidence by which it is sustained, the defence set up has wholly failed. The contract made by the agent of the defendants certainly bound them to transport the goods of the plaintiff to Albany, the terminus of their own road; and it is not shown that their contract, even in this limited interpretation, has. been performed. For aught that appears, the boxes of the plaintiff never reached Albany at all. The burden of proving that they were carried there, and were there delivered, or tendered for delivery, to the plaintiff, rested upon the defendants, and upon the trial no such proof was given, nor offered to be given.

There is no force in the objection, that it was not proved, on the part of the plaintiff, that the delivery of the goods was demanded by him in Chicago. It is found by the Judge, and his finding is justified by the proof, that the boxes of the plaintiff and their contents were not, nor was any part thereof, carried by the defendants, or by them caused to be carried, to Chicago; and that, prior to the commencement of this action, they had no office there, nor agent at Chicago, from whom the demand could have been made. A demand is excused, when it is shown that it could not have been complied with, and the obligation to make it ceases, when the act is proved to be impossible. Lex neminem cogit ad impossibilia.

But, had a different state of facts been proved, still the objection could not have prevailed. It is founded on an erroneous view of the existing law. The duty, which, as a general rule, the law imposes upon a common carrier, is that of delivering the goods, which he undertakes to transport, to the owner or consignee, personally, at the place where the transportation ends. His duty is to seek the person to whom the delivery is to be made, and make its tender; and from this duty he can only be discharged by a special contract, or by proof of an opposite usage. Such was the decision of the Supreme Court, in Gibson v. Culver, (17 Wend. 305,) and that such is the established law, is abundantly proved by the cases and authorities which Mr. Justice Cowen, in an elaborate judgment, has there collected and reviewed. (Vide, also, Magill v. Potter, 2 Johns. Cases, 371; Fish v. Austin, 1 Denio, 45; Brice v. Powell, 3 Comst. 322.)

The objection that has probably been most relied on as creating a bar to the plaintiff’s recovery, is, that it has been found by the Judge that the agent of the defendants, Pierce, had no authority to make the contract, upon which this action is founded, but the meaning of the Judge undoubtedly is, that Pierce had no such express authority; that no such authority was in terms delegated to him; and, in our opinion, the effect of this finding is completely removed by his having also found that Pierce was the general agent of the defendants, in making contracts for the reception and transportation of freight; that he was held forth to the world as possessing full authority to make all such contracts, and that the plaintiff had no knowledge or notice of any limitation of his powers. Hence, as the contract upon which the action is founded was certainly within the general scope of the agent’s apparent authority, we are clearly of opinion, that it bound the defendants, and that they are answerable for the damages which the plaintiff is proved to have sustained from its breach. (Story on agency, § 443, p. 540.)

It seems to us that the other exceptions stated in the case are so plainly untenable as not to require a special consideration. Even had the answer been amended as was desired, we cannot see that the amendment would have helped the defendants, for, admitting that they were not common carriers from New York to Chicago, we must still have held, that they were liable for their breach of a positive contract.

The judgment at Special Term is affirmed, with costs.  