
    MARSH v. UNION PACIFIC RAILWAY CO.
    
      (U. S. Circuit Court, Colorado District,
    
      January 11, 1882.
    
    
      Ruling on Motion for New Trial.)
    
    1. Common Carrier—Lien of, Depends on Contract. The lien of a common carrier on goods transported, depends on the contract with the owner. Ordinarily the law implies such lien, and it will be held that, in delivering goods to be carried, the owner assents to the condition that the carrier may retain possession of the goods until his reasonable charges have been paid, although nothing may be said on the subject. But when goods are sent, not according to the contract with the owner, but by some other route, there is no lien for freight money. Nor in case of prepayment of the freight upon contract for through rate.
    ■ 2. Same—Through Rate—Receiving Goods with Knowledge of Contract for. A common carrier receiving goods from another carrier with knowledge that a through contract has been made, and the price of transportation to the point of destination paid in advance, can assert no lien on such goods for transporting them over its line.
    3. Trover lies for the value'of goods illegally withheld under claim of lien for freight money.
    4. Evidence—How Value of Household Goods to be Proven. In such an action the plaintiff is a competent witness to testify as to the value of the goods, though he may not know the market value of such goods at tlfe place of delivery. Perhaps the best way to arrive at the value of such goods would be to show the price in the market of new goods of the same character, and then show, as nearly as possible, the extent of depreciation from use. But such course is not open to a plaintiff when the defendant retains possession of the goods. In the matter of values, as in other matters, the law will give relief according to the injury, on the best testimony that can be obtained.
    Amount of Damages. When there is reason to believe the amount returned by the jury is larger than the reasonable value of the property, plaintiff may be required to elect between an abatement of part thereof, or submit to a new trial. Electing to abate, new trial will not be ordered.
    In April last, at Zanesville, Ohio, plaintiff made a contract with the Pittsburg, Cincinnati and St. Louis Railway Company to convey for him a car-load of household goods from Zanesville to Denver, for the sum of $185, then paid to said company. The car was brought to St. Louis by that company, and from St. Louis to Kansas City by the Wabash, St. Louis and Pacific Railway Company, and from Kansas City to Denver by defendant. At Denver defendant demanded an additional sum of $15 freight money, claiming that its charge for conveying a car-load of such goods from Kansas City to Denver was $100, and, as it had received only $85 from the Wabash Company, the sum of $15 was still due from plaintiff. Some discussion ensued between defendant’s agent and plaintiff, in the course of which the agent was told by plaintiff that a through rate to Denver was paid on the car, and defendant refusing to deliver the goods until the $15 should be paid, and plaintiff refusing to pay, this action of trover was brought to recover their value.
    At the trial there was evidence to the effect that the Pitts-burg Company had authority from defendant to make through contracts for carrying freight to points on the line of defendant’s road, at the rates given in the schedules published by defendant. In this instance, however, the rate was fixed on a joint schedule, published by the Wabash Company and the Missouri Pacific Company, each of which has a road extending from St. Louis to Kansas City. This schedule gave through rates to Denver and other points in the West, the authors of it apparently assuming to add to their own the rates of other roads connecting with their roads at Kansas City.
    Some discussion has arisen at the Bar upon the amount due the Wabash Company under the schedule for carrying the car from St. Louis to Kansas City, and whether the schedule was properly understood by the Pittsburg Company, but it is not necessary to state it, as the point was not put before the jury. The bill of lading or manifest under which the Wabash Company brought the car from St. Louis to Kansas City was not put in evidence. From all that could be gathered at the trial it would appear that it was not the practice to send a bill of lading with the car from the place of shipment to destination. But something called a transfer sheet was delivered with the car by each company to its successor in the line of travel. And there was evidence tending to prove that the transfer sheet contained no other information of a through contract for carrying the car than the place of shipment and the amount of money turned over with the car. The manifest, sent with the car from Kansas City to Denver by defendant’s agent, contained these words, in biackets, ‘Will remit $85—to apply,” and the fact that $85 was paid to defendant by the Wabash Company on account of the transportation of the car was not denied; several witnesses testified that it was a rule with defendant to demand payment in advance for carrying household goods, and this was not controverted.
    
      The goods in the car were furniture, beds and bedding, carpets, crockery, pictures, books and other articles usually kept for family use. Plaintiff had used them in his house at Zanesville for several years, and was removing them to Denver, with a view to establish his residence at that place, and to make use of the goods in his house. At the trial he offered himself as a witness to prove the quality and value of the goods. As to his knowledge of values in Denver, he testified that he had occasionally . inquired at a second-hand store for the price of furniture and other articles there exposed for sale; that he attended a sale by auction of second-hand goods made by an assignee; that he had bought some articles of furniture for household use, but he had no general knowledge of the value in Denver of new or secondhand goods of the kind and quality shipped in the car.
    Defendant objected that he was not competent to testify as to the value, but the Court overruled the objection and received the testimony.
    In the course of plaintiff’s examination it became apparent that his ideas of- values were derived mainly from the original cost of the articles at Zanesville. In some instances he claimed to have knowledge of the value of new goods of the same kind in Denver, but in great part he relied apparently on the original cost, deducting something, not very much, for wear and tear. He frequently spoke of “the value to him” and “the value to him to wear out,” thus distinguishing between the value in market as second-hand goods and to the owner for use. Defendant’s counsel contended that this was a sentimental value •—pretium affectionis—arising from long possession and use of the articles. There was nothing, however, to indicate that the words were used in that sense except that there were several portraits of members of his family in the lot. And as to them, the plaintiff did not express an extraordinary value, but was apparently relying on the cost of them. In the aggregate, he fixed the value of the goods at something over $2,700, No other witness was called by plaintiff to prove the value, and no testimony was offered by either party as to the value in Denver of new goods of the same kind and quality. Defendant did not assert or claim that plaintiff had gone beyond the cost of new goods of the same kind in his estimate of value.
    
      Two dealers in second-hand goods, of large experience in Denver, were offered by defendant. They had examined the goods, not very carefully, but so as to make an estimate of their value. They thought the goods were worth to the owner, for use, $725 ; for sale as second-hand goods, about $400.
    The charge to the jury was as follows:
    “ The plaintiff brings this action, gentlemen, to recover the value of goods which have been described in the evidence, upon the ground that they were wrongfully detained by the railroad company, the defendant. The defense is, that the company had a lien upon the goods for unpaid freight charges, and a right to detain the goods until the charges should be paid. If there was any such lien, the company, of course, could hold on to the goods until their charges were satisfied. And that is the principal question to be decided; whether there was or was not any such lien upon the goods.
    “It is in evidence before you that the goods were shipped from Zanesville, in the State of Ohio, on the Pittsburg, Cincinnati and St. Louis Railway, to this place, and that the plaintiff, at the time of shipment, paid what was demanded as a through rate for the goods to this point—that is, the full amount as given by the Pittsburg, Cincinnati and St. Louis Railway Company as the -charges for transporting the goods to this place. If the Pitts-burg Company had authority from the defendant here to make contracts in its behalf, that contract, of course, would be as binding upon this defendant, the Union Pacific Railway Company, as it was upon the Pittsburg Company. But I do not think that there is any evidence before you to show that it had such authority. The evidence is contained in these depositions, that it is the practice of railroad companies to make contracts for carrying goods to distant points upon the published rates, the tariff of charges as published by the different companies in the line of transportation—that is, they would take the charges on their own line, and the charges of the Wabash, if that is the other company that would carry from the terminus of the Pittsburg Company’s line to Kansas City, and the tariff of the Union Pacific Company, and make up the amount from these several tariffs.
    “Now, the evidence is, that, in this instance, they took the tariff of charges as published by the Missouri Pacific and the Wabash roads, that have lines extending from St. Louis to Kansas City, and it seems that they had put out a schedule in which they had fixed the rate to points in this city and elsewhere in the West But it is plain enough that the Wabash Company and the Pacific Company could not fix rates for the Union Pacific Company, and as this rate was fixed upon the schedule published by these two companies, the Wabash and the Missouri Pacific, it does not follow from that at all that the rate, as published by the Union Pacific for this part of the line of transportation, was used in making up the aggregate price for bringing the goods to this place. It may be the rate, but there is no evidence to show that it is the rate.
    “ Now, upon that, we are able to say that it does not affirmatively appear that the Pittsburg Company had authority from this defendant to make contracts of this character; and so we must ascertain whether there is any other ground on which the defendant may be liable, and upon that I am of the opinion, that if the Pittsburg Company did, in fact, fix a through rate, and receive pay for that, and this defendant, or its" agents and officers, atihe time of receiving the goods, had information of that fact, that a through rate had been paid, that may be sufficient. It is not necessary that the amount paid should have been that charged by the Union Pacific Company, nor is it necessary that the Union Pacific Company, or its officers or agents, at the time of receiving the car, should have known what was paid. But the circumstance that a through rate had been paid—in other words, that a contract was made with the Pittsburg Company for transporting the goods from Zanesville, Ohio, to Denver, and that they had been paid for it; for if that is true, if, knowing that, they received the goods and transported them, they knew, at the time of receiving them, and at the time of transporting them, that the plaintiff was acting upon the theory, upon the hypothesis, that the goods were paid through in sending them from Zanesville. They knew, of course, if that is true, that, in delivering the goods in the first instance to the Pitts-burg Company for transportation, he had assumed that the charges were paid, and, upon that, I do not think that any contract can be implied which would give to this defendant a right to assert a lien against the goods for any amount that may be due them, even if the amount received by the Pittsburg Company was not sufficient to pay their rate. Because, when a party delivers goods to a railroad company, and makes a contract for transporting them to destination, to the place where he wishes to send them, and, at the same time, pays the amount demanded, it cannot be said that he has agreed that anything additionál shall be charge^ to him, and that any of the carriers in the line of transportation shall have a lien upon the goods for such charges. By paying in advance the sum which is demanded, he completes, he fulfills, the contract on his part; it is all that is required of him, and it cannot be said afterwards that he has assented to the right of any company to charge his goods with a lien in respect to the carriage of them, and that, although a mistake may have been made in respect to the amount tobe charged. So that the important question, as it seems to me, for your consideration, is, whether, at the time of receiving these goods, and fsrwarding them to this place, the agents and officers of this defendant knew that a contract had been made for transporting the goods through to Ais point, and payment had been made in accordance with that contract. Now, upon that, the evidence is, that, at the time these goods were turned over, that some money, $85, it is said that that was not sufficient, but $85 was turned over by the Missouri Pacific, or whatever company it was that brought the goods from St. Louis to Kansas City, to this company; and it is also said in some of these depositions, it was the usage and custom of the company to require prepayment upon this class of goods. That also is in testimony. If, upon this testimony, you believe that the agents and officers of the defendant company knew, at the time these goods were received, that a contract for carrying them to this place had been made, and that payment had been made for carrying them through to this place, that is enough. If you find they had no such knowledge, then your finding will be for the defendant
    “With that explanation, there is only one other thing, and, that is the value of these goods. The counsel have asked me to say that the value of the property in controversy is what the goods are shown, by the testimony, to be worth in this market, and not what the plaintiff testifies they would be worth to him to wear out. That is a correct proposition, so far as it states that it is the value of the goods in this market, for this is the place of the conversion, if there was any conversion. But it is the value of the goods to the plaintiff, and for use to him, perhaps not what he considered them to be worth to him, not his estimate of their value, but what they were worth to him, and for the purpose of their intended use to him, and it is not the value of the goods in a second-hand store, because, as we all know, goods of this class are of very little value in such places as that; not what they would sell for out of one of these establishments on the street, but what the goods were reasonably worth to the plaintiff, for the purpose for which he intended to use them, to him as the owner of them, as the person who intended to make use of them in his household affairs.
    “ I would like you to distinguish, if possible, between the estimate he may place, any sentimental value he may attach to them as things he may have owned for a long time, and all that, and the value which may be given upon the street, or amongst dealers. I don’t think it is either one or the other; it is not the peculiar value the owner may attach to them on account of the service they have rendered to him, nor is it the value for which they would sell in the market as things that are somewhat worn, and which are not very saleable under the most favorable circumstances. It is something between these different values. It is the value which the owner may find in them, using them in the ordinary course of his affairs, and which everyone has, in so far as one is a housekeeper, in the goods, furniture in his house; the value to him for that use. If you can come to some conclusion upon that, that is the measure of damages.
    “ I do not know, gentlemen, that there is anything more to be said to you.
    Defendant’s counsel asks the Court to instruct the jury that the burden of proof to show that this contract had been made, is upon the plaintiff, and no failure on our part to produce any evidence can be taken in his favor; he must make out a special contract had been made.
    
      The Court: “That is true, gentlemen, the burden is upon the plaintiff to establish everything essential to recovery. There is no question upon any point as to the making of the contract, that is clearly enough shown, the making of the contract, and the shipment of the goods. Upon this question, as to whether the defendant company knew, at the time of receiving the goods, that a through contract had been made to Denver, and payment made in accordance with the terms of that contract, the fact must appear to you by a preponderance of testimony ; the weight of the testimony must be on that side to enable the plaintiff to recover.”
    The jury returned a verdict for plaintiff, assessing damages at $2,000.
    Defendant moved for new trial alleging error in receiving plaintiff’s testimony as to the válue of the goods, in the charge to the jury, and that the damages are excessive.
   Hallett, J.

The lien of a carrier for freight money on the goods trans ported by him depends on the contract with the owner. Not that it is necessary that the lien should be mentioned in the contract, but there must be a contract for carriage oh which it may rest. In the ordinary course of business, goods delivered for carriage are subject to the condition implied by law that the carrier may retain possession of them until his reasonable charges shall be paid. In delivering them to be carried, the owners assent to that condition, although nothing may be said on the subject, and thus it becomes a part of the contract—just as, in the absence of agreement as to price, the law will imply that it shall be reasonable. On this principle it is settled that a wrongdoer cannot confer on the carrier the right to assert a lien against the true owner. And when goods are sent, not according to the contract with the owner, but by some other route, there is no lien for freight money. Fitch v. Newbury, 1 Doug., (Mich.,) 1; Robinson v. Baker, 5 Cush., 137; Stevens v. Boston & Worcester R. R., 8 Gray, 262. Because the owner cannot be divested of his property without his consent, and to allow a lien on the goods in a matter to which he has not assented, would divest him of his property to the extent of the lien.

To apply the rule to the present case, it is only necessary to say that, in the contract with the Pittsburg Company plaintiff did not in any way consent to have his goods charged with a lien for carrying them to Denver. It was not an agreement to pay, and that his goods should be held until he should pay, but he did in fact pay the price of carrying the goods, and as to him, the contract was fully executed before the goods left Zanesville. Plaintiff paid the price demanded of him, and all that was demanded for carrying the goods, and it would be absurd to say that he assented to a lien on his goods for the same thing—the money which he had already paid.

But it is said that the Pittsburg Company had no authority from defendant to fix the price of carrying the goods in the way that it was done—on the schedule published by the Wabash and Missouri Pacific Companies. And so the Court ruled at the trial, without referring to defendant’s rule that for carrying household goods, payment must be made in advance, under which it might be claimed with reason that the company first receiving the goods was defendant’s agent to fix the rate and receive the money. This point was not stated to the jury, however, and they were advised that the Pittsburg Company was without authority from defendant to make the contract. The jury was also instructed to find whether the goods were received by defendant at Kansas City with knowledge that a through contract had been made by the Pittsburg Company, and the price paid for carrying them. Of that there was ample evidence in the rule of defendant requiring pre-payment on household goods and the fact that $85 was paid to defendant by the Wabash Company on account of freight money. Some of defendant’s witnesses say that the payment by the Wabash Company is of no weight, as freight money is often advanced by shippers when a through contract has not been made, and it would be impossible to determine whether the money was paid on a through contract or as an instalment of freight money. This means that money is paid in both ways, and leaves the payment by the Wabash Company to stand as affording some evidence of a through contract. Taken in connection with the rule requiring payment in advance on household goods, it was sufficient to warrant the finding that defendant received the goods with knowledge that a through contract had been made for carrying them to destination.

And if defendant was advised of the terms of the contract before it performed the part assigned to it, there would be force in the suggestion that by such performance the contract was accepted. It is not necessary, however, to go so far, for the fact that a through contract and payment was made, and that defendant had knowledge of it, is enough to defeat the lien.

Independently of that circumstance there may be room for debate whether one who has paid the price of carriage can be further charged in respect to the same matter; whether all companies who have a part in the contract and perform that part shall not be regarded as accepting the contract; whether any of the companies in the line of transportation after the first shall be taken to be the agent of the shipper to make a new contract for him, when, by acting for himself, he has practically denied the authority of another to act for him. But these are points with which we are not now concerned. ' The jury have found, upon sufficient evidence, that defendant received the goods with knowledge of the fact that a through contract for carrying them had been made, and that plaintiff had paid for the service, and that, of itself, displaces the lien on which defendant relies.'

This is enough to show that the action may be maintained; for trover lies for the value of goods illegally withheld under a claim of lien for freight money. Adams v. Clark, 9 Cush., 215.

Objection is made to the plaintiff as a witness to prove the value of the goods, on the ground that he had no knowledge of the market for such goods in Denver. Many cases are cited to the point that the market price in the place of conversion must control; a proposition which cannot be controverted. Whenever it appears that there is anything like an established price in the market, for which the articles in controversy can be replaced, that price will measure the damages for converting such articles. But for household goods more or less worn, there is no established price, unless it be that at which second-hand goods of the same kind is sold. And although people who discontinue housekeeping may be compelled to accept that price, no one will contend that it is the full value of the goods. The fact that goods in use, if sold at all must be sold at a sacrifice, is too plain for argument, and therefore the price of such goods in market will not be adequate compensation to one who is deprived of his goods by a wrongdoer. Perhaps the best way to arrive at the value of such goods would be to show the price in market of new goods of the same kind, and then show, as nearly as possible, the extent of depreciation from use. But this course was not open to plaintiff, for the goods were in defendant’s possession, probably not in a condition to be examined, and plaintiff was not bound to inquire whether he would be allowed to send witnesses to inspect them. If it is suggested that a dealer, hearing a description of the articles, would be able to fix their value, the answer may be that few persons would be able to give a description which can be understood. The average man would find himself very much embarrassed in any effort to describe furniture and other articles of household use definitely, so as to enable one who never saw them to judge of their value. No one in Colorado knew anything of these goods, and among plaintiff’s acquaintances in Zanesville he could not expect to find anyone more competent than himself to testify as to their value. On the whole, it would seem that if plaintiff’s testimony as to value cannot be accepted, he will be defeated of his right, and that will not be allowed. In the matter of values, as in other matters, the law will give relief, according to the injury, on the best testimony that can be obtained. Stickney v. Allen, 10 Gray., 352. Starkey v. Kelley, 50 N. Y., 676.

J. W. Horner, for plaintiff

Willard, Teller, for defendant.

O11 the other hand defendant being in possession of the goods was in a position to prove their value in a manner which would dispel all doubts. It attempted to do this, but the evidence is not very satisfactory. The goods were not in a condition to be examined with care, and defendant’s witnesses did not give the attention necessary to correctly estimate their value. Evidence of the value in this market of new goods of the same kind which would have enlightened the jury was not offered by either party, and if the verdict is wrong the fault is not wholly with the jury. There is, however, some reason to believe that the amount returned is large, and the plaintiff will be required to remit $500, or submit to a new trial.

The evidence of value offered by defendant was probably entitled to greater weight than was allowed to it, although it cannot be said that it should control. If the plaintiff will remit from the damages the sum of $500, the verdict may stand, otherwise, a-new trial will be allowed.

Plaintiff remitted the $500, and judgment was entered for £i,5oo.  