
    
      F. & J. Bradford vs. The South-Carolina Railroad Company. Others vs. The Same.
    
    In 1849, the South-Carolina, Georgia, and W. & A. Railroad Companies, entered into a joint arrangement to carry cotton through from Chattanooga to Charleston at 65 cents per 100 lbs. The South-Carolina Company published a notice, stating the arrangement, requesting shippers to take duplicate receipts, and forward one by mail to their agent at Hamburg, “in order to fix responsibility on this Company, with these precautions, the business oan and will be transacted mutually satisfactory to all concerned. The Roads pledge themselves to give all practicable despatch to cotton entrusted to them for transportation.” The action was to recover for damage to cotton shipped under the arrangement. The damage occurred before tho cotton reached the road of the South-Carolina Company, the defendants. Duplicate receipts had been taken and forwarded to the agent of the defendants according to the terms of the notice :—
    
      Held, that the three Companies were joint contractors, and that the South-Carolina Company wore liable for the damage which occurred in the transportation before the cotton reached their road.
    The question, Whether the contract was joint, depending not only upon the construction of several written instruments, but also upon oral evidence, held, that the Circuit Judge was right in submitting that question to the jury.
    
      Before O’Neall, J., at Charleston, Spring Term, 1853.
    This was an action against the South-Carolina Railroad Company for damage to cotton in its transportation to Charleston by the Atlantic and Western, the Georgia, and the South-Carolina Roads.
    The declaration consists of forty-three counts on forty-seven special receipts. The forty-second count charges the South-Carolina Railroad Company, the Georgia Railroad and Banking Company, and the State of Georgia, as joint carriers for the transportation of cotton from Chattanooga in Tennessee to Charleston, (of whom the last two mentioned are absent,) and that on divers days, between the 26th day of November, 1849, and the 6th day of June, 1850, they received of the plaintiffs, 2,902 bales of cotton to be carried for hire from Chattanooga to Charleston. All the other counts charge that the South-Carolina Railroad Company, the Georgia Railroad and Banking Company, and the State of Georgia, were partners; and as partners, undertook to cany the same cotton. The forty-third count alleges a breach by negligence resulting in damage by delay : all the other counts conclude with charging negligence resulting in great damage by wet and injury to the cotton.
    The receipts given in evidence do not vary in substance from the following:
    Transportation Department, ? W. & A. R. R., Chattanooga Depot. )
    
    Received of J. S. Brooks & Co., in good order and condition, the following lots of cotton (describing them) marked as below, for shipment, in all, 333 bales; all consigned to F. &■ J. B. Bradford, Charleston. William W. Bishop, Agent.
    
    In some receipts, the words, “in good order,” are omitted; others express that the freight is payable in Charleston; they were all signed by Bishop, or other agents of the Western and Atlantic Railroad belonging to the State of Georgia, which is managed by public agents of the State.
    The plaintifFs, to prove the South-Carolina Railroad Company liable on the contracts for transportation, examined
    
      William H. Bartless, the Secretary of the Company in 1849, who proved that there was a joint arrangement between the Company here, and the Georgia Roads, to carry cotton through at sixty-five cents per 100 lbs. That the arrangement was carried into effect, and the freight paid here. He proved the publication in a Western paper of a notice signed by him as Secretary of the South-Carolina Railroad Company, by which it was held out, that a ticket could be obtained at Chattanooga to pass cotton from Chattanooga to Charleston at 65 cents per 100 lbs., and that shippers, to secure the benefit of such ticket, should take duplicate receipts, and forward one of them to the Company at Hamburg.() The greater part of the receipts are dated at Chattanooga, the rest at Dalton (an intermediate point); and all are signed by the authorized agent of the Western and Atlantic Road.
    
      H. F. Baker and T. D. Wagner — Made a survey, which they verified, and proved the damage. The cotton was at the depot in Charleston. The damage was not recent; — the trip from Augusta, where the defendants receive it, to Charleston, occupies not more than twenty-four hours.
    
      D. 8. Williams proved the damaged state of the cotton, and the great delay between the date of the receipts, and the delivery in Charleston.
    On the part of the defendants—
    Mr. W. Beauclerc, Cotton clerk in the service of the Georgia Railroad at Augusta. — He saw the cotton ; it came from Chattanooga in a wretched state. The Georgia Railroad passed it over to the South-Carolina Railroad. W. H. Oakman, for the South-Carolina Company, received the cotton in Augusta; he gave no receipt. When it got to Hamburg, Adams signed receipts for the South-Carolina Company. The Georgia Railroad gave no receipts to the Atlantic and Western Railroad. The cotton-yard where this cotton was piled in Augusta, was very wet; some lay on the ground without skids, others on the platform ; this was in 1849-50 ; the practice has been changed since. The cotton was carried off by the South-Carolina Road as fast as they could, it lay in the wet some time, but not long enough to be damaged.
    
      W. H. Oakman, the agent of the South-Carolina Railroad Company, confirmed this statement.
    
      
      D. 8. Adams, the agent of the South-Carolina Railroad in Hamburg, proved that the cotton came to him damaged. It was received in bad order, and so noted in the receipts and freight-lists. The freight-lists, which were produced, showed the same thing.
    
      John Burke, clerk of the defendants in Charleston, proved, that the cotton came damaged; and this appeared in the freight-list. This witness was also examined to prove that the bills for freight were made out in the name of the South-Carolina Company, and received by them. That they paid for missing cotton, called “ short delivery.” But the Companies were not liable to one another for profits or losses. A through ticket is an accommodation. The South-Carolina Company pay the freight on merchandize from the North, and add it to the expense-bill. Expense-bills for cotton from the West, are sometimes sent by the other Companies after delivery of cotton, and charged to the South-Carolina Company. When expense-bills are not collected, they are returned to the party from whom they came, and the Company credited.
    Whether the cotton was damaged before the responsibility of the Western and Atlantic Road commenced, formed the subject of a mass of testimony, which it is deemed unnecessary to report.
    The report of his Honor, the presiding Judge, is as follows :
    “ These actions were brought on Railroad receipts of cotton to be carried from Chattanooga by the way of the Western and Atlantic, Georgia and South-Carolina Railroads, to Charleston. The defendant was sued, first, as one of three partners ; — the other two, the Georgia Railroad, and the Western and Atlantic Railroad, not being within the State ■ second, as one of three joint contractors; — the other two, the same parties, being without the State.
    “ It appeared, by the testimony of Mr. Bartless, former Secretary of the South-Carolina Railroad Company, that there was an arrangement between the South-Carolina Railroad Company, and the Georgia Railroad Company, and the Western and Atlantic Railroad Company, whereby cotton was to be carried from Chattanooga to Charleston for 65 cents per hundred weight. The freight was paid in Charleston. An advertisement was published by the South-Carolina Railroad in a newspaper in North Alabama, stating this arrangement, and cautioning persons sending cotton, that the South-Carolina Railroad would not be liable, unless a duplicate receipt for the cotton sent from Chattanooga, was sent to their agent at Hamburg.
    “ This arrangement was entered into in 1849, and applied to the business done after the opening of the Western and Atlantic Road to Chattanooga, in December, 1849.
    “ In Bradford’s case, which was alone tried, (all the others taking verdicts in conformity to the result of that case,) there were forty-seven receipts in evidence, given by the agent of the Western and Atlantic Railroad Company at Chattanooga, thirty of which stated the cotton to be in good order, sixteen were silent, and one stated the cotton to be wet. Duplicates of the receipts were properly forwarded to the agent at Hamburg.
    “The proof was clear that a great deal of the cotton was badly damaged, when it reached Charleston, from being wet. It was equally clear, that this damage did not occur on either the South-Carolina Railroad or the Georgia Railroad.
    “ It was alleged, that it occurred after the cotton came into the possession of the Western and Atlantic Railroad.
    “The proof was, that the fall, winter and spring of ’49-’50, were extremely wet; that the cotton came up the Tennessee river in boats, and wras much exposed to mud and wet at the landing; and also, while it was at the depot at Chattanooga, but before it was placed on the platform, when the liability of the Western and Atlantic Railroad Company commenced, and also on the trains to Dalton' after the Western and Atlantic Company received it.
    “ It can be hardly necessary to state the proof on this question, as I presume the Court will not venture to examine the verdict of the jury in reference to a much contested and doubtful fact. If, however, the counsel desire it, they can bring up the depositions of the witnesses, and my notes will be at trial in the Court of Appeals.
    “ The jury were told that their attention must be directed to five points:
    “ 1. Were the South-Carolina Railroad Company, the Georgia Railroad Company, and the Western and Atlantic Railroad Company, partners ? I instructed them, that they were neither general nor special partners.
    “ 2. Were they joint-contractors for the carriage and delivery of the cotton? This, I thought, depended so much on the proof, that I left it to the jury, expressing to them, however, a pretty plain opinion that I thought there was hardly sufficient proof to fix a joint liability.
    “ 3. The effect of the receipts in good order. They were told that such receipts cast upon the Company giving them, the burden of the proof to show that the cotton was not in good order when it was received.
    “4. When the receipts were silent, the same liability resulted from receiving the cotton, and not stating that it was in bad order. If, however, the terms ‘ in good order’ were in the printed receipt, and were struck out, as was the case in some, it might be equivalent to a receipt in bad order.
    “ 5. The question, when the cotton was injured, whether in the possession of the Western and Atlantic Railroad Company, or before it came into their possession, was left to the jury.
    
      “ They found for the plaintiffs, in all the cases, the damages claimed.”
    The defendants appealed, and now moved this Court for a new trial, on the grounds :
    1. That the defendants are no parties to the contracts on which the plaintiffs declare, and the jury were not authorized to find that the defendants were either partners, or joint-contractors, or in any way liable on the contracts of affreightment or railroad receipts, on which the plaintiffs declare.
    2. That the cotton was damaged before it was received by the Western and Atlantic Railroad: the plaintiffs were not entitled to a verdict even against them.
    3. That the defendants delivered the cotton of plaintiffs in the same condition in which they received it, and the plaintiffs showed no cause of action against them.
    4. That it should not have been left to the jury to construe the contracts of affreightment, or railroad receipts, declared on by plaintiffs, as constituting, in connection with other circumstances, joint undertakings by the defendants with the Western and Atlantic and Georgia Railroads ; and, if the defendants had prayed a non-suit, it should have been granted, and the verdict should be set aside as having found, without evidence, a fact essential to the plaintiffs’ action.
    5. Because the verdict is contrary to law and evidence.
    
      Petigru, Petigrew, for appellants.
    
      Pressley, Hayne, Memminger, contra.
    
      
      
        (a) See copy advertisement in opinion of Withers3 in Court of Appeals.
    
   The opinion of the Court was delivered by

Withers, J.

By a paper called an advertisement, issued from the office and by authority of the South-Carolina Railroad Company, at Charleston, and bearing the double dates of October 22 and November 2, 1849, published in one or more newspapers, under the head, Freight on cotton from Chattanooga, Tenn., to Charleston, South-Carolina,” notice was given as follows : “ By a recent arrangement between the South-Carolina, the Georgia and Western and Atlantic Railroads, a through ticket for freight on cottun has been made from Chattanooga, Tenn., to Charleston, S. C., at the rate of 65 cents per 100 lbs. It is highly necessary, in order to insure correctness in the transaction of this business, that the agent of the South-Carolina Railroad, at Hamburg, should be aware of the number of bales and marks of each shipment. Shippers are therefore earnestly requested to take duplicate receipts; one of which must, in all cases, be forwarded, per mail, to the above-named agent, in order to fix responsibility on this Company. With these precautions, the business can and will be transacted mutually satisfactory to'all concerned. The Roads pledge themselves to give all practicable despatch to cotton entrusted to them for transportation.”

Subsequent to this notice, and the evidence leaves no room to question, in pursuance of it, receipts or contracts of af-freightment were executed and delivered to shippers oí lots of cotton, dated, for the most part, at the Transportation Depart-merit, Chattanooga Depot, of the Western and Atlantic Railroad Company — some at Dalton, hy persons who subscribed them as “agents,” without more. The bales were described therein, as usual in such transactions — in some the order and condition was stated' to be good — in others nothing was stated on that subject — in one that the cotton was wet — all acknowledging consignment to the parties in Charleston who are litigant with the South-Carolina Railroad Company, in these cases.

Much of this cotton was found seriously damaged upon its arrival in Charleston, precisely when, where, or how, is not conclusively ascertained, but, there is good ground to believe, before it reached the custody of the said Railroad Company. These actions involve in the aggregate, heavy reclamation demanded of that Company and fixed upon it by the verdicts rendered. The liability is charged in the declarations, first, -as against a resident copartner, the two other Railroad copartners being beyond this jurisdiction; second, as against a resident joint-contractor. The claimants have abandoned the ground of partnership and rest their cases upon that of joint contract on-the part of the three roads.

This Court has not adjudged the question of partnership, since it has not been fully discussed, but has considered the position of joint-contract as that relied on by the appellees, and it is found to be one upon which the cases can he decided.

The course of dealing among the three roads, touching the business growing out of the “ arrangement” already set forth, was thus : Expenses resting on the cotton received at Chattanooga for transportation to Charleston were paid at the former & and Ham-place by the Western and Atlantic Railroad, which terminated at Atlanta; at that point, the Georgia Railroad took custody and gave credit to the other road for expenses paid and freight earned by it — that is, some proportion of the 65 cents per hundred for the entire transit. At Hamburg, the South-Carolina Railroad took custody and entered a like credit to the Western and Atlantic and the Georgia Roads, and having transported the cotton to Charleston, received the entire freight, holding a duplicate bill of affreightment; and debited shippers OEjtfeeiíF&S?: signees with the aggregate expenses, including (itM the porterage, by drays, necessary between Augus burg. It has not appeared in what several proportic freight was partitioned among the three roads, nor -__ was a secret contract among them as to the contingetacjkslcS? fkfr'-®' business. A statement on the part of appellants re witness to have said that the Companies were not liable to eaí other for profits or losses. It is in evidence, that the South-Carolina Railroad Company did account here for what is called “ short delivery,” but whether such reimbursement was paid out of the aggregate sum of freight, its own share included, or whether it was entered as a debit to one or other road, and as an offset to its share of freight, accordingly as the loss was attributed to a particular one, has not been made to appear.

If the case rested exclusively upon the receipts executed at Chattanooga, the joint contract among the three roads would not be established. That evidence, alone, would import no more,- than that the Western and Atlantic Road had undertaken to deliver the specified goods, upon the responsibilities of the-law of common carriers, at Charleston. That the agency of others was indispensable, would not dictate a contrary conclusion, even although the further fact should be added, that an entire freight for the whole line of transit should be receivable, in solido, by the South-Carolina Company, and be divisible among those engaged in the transportation, as several and not joint earnings.

The case would become stronger to warrant the inference of a joint undertaking, a joint interest, and, therefore, a joint liability, (if not a partnership, quoad hoc,) if we add the considerations, supposed to be sufficiently potent and notorious to be fairly introduced, to wit: that the upper railroad, in the autumn of 1849, was in such degree forwarded, though incomplete, as to covet the business of transportation for the cotton-producers in the neighboring regions of Alabama and Tennessee — that there was an interest common to the three roads in tempting the cotton of those regions, through the channel of the Tennessee River and otherwise, to the line of transportation over their roads, instead of other channels which would lead the produce to the Gulf of Mexico — that Charleston and the South-Carolina Railroad Company, having long earnestly sought the object in question, even to that degree which led to large pecuniary contributions, had the greatest interest to secure, by some effectual arrangement at the terminus a quo, the starting-point, the progress of cotton to itself, and thus to Charleston, against the competition, for its diversion to some other point, at Atlanta, and also at Augusta. It may be, that these considerations would be insufficient to stamp the contracts of affreightment at Chattanooga, as the contracts, jointly, of the three roads. It might still be a case wherein the Western and Atlantic Railroad undertook to carry and cause to be carried, between the specified termini; that the consequent liability attached to that party only — that it would be governed by the maxim, respondeat superior, and would be the counterpart of the case of Muschamp vs. The Lancaster and Preston Junction Railway Company, 8 Mees. &. W. 421. It might still be, that the Western and Atlantic Road would, in fact and in law, be the contracting party, and the others should be reckoned servants or agents under them.

But when we advert to the “ advertisement” of the South-Carolina Railroad Company, when we remember that the other two roads, though not parties, expressly and in writing made public, thereto, yet systematically acted in conformity therewith, that the cars of the Georgia Road received the cotton at the terminus a quo, and thus secured it against diversion at Atlanta, and the South-Carolina Road received the same at Hamburg or Augusta, and thus secured it against diversion there — that all this was done by virtue of the original contract of affreightment, without further stipulation with shipper or consignee — the preceding considerations acquire weight and substance; they furnish obvious, strong and adequate motives to lead the managers of the three railroads into a joint understanding and assumption of liability for the particular business specified in the advertisement. Connected with the practical execution of the business accordingly, they tend to show, that the other two roads stipulated, as the advertisement discloses, originally, or ratified subsequently. These views acquire the greater force, when they are urged by strangers to the contracting parties — by third persons. For there is equal reason to give such the same advantage of such a position, when the inquiry is as to a joint liability in character of joint-contractors, as when the inquiry concerns partnership touching the rights of strangers. To such, partnership is but joint liability.

Let us now resort, more particularly, to the terms of the advertisement.

It announces an arrangement between the three railroads resulting in a through ticket for cotton, at a rate in solido, from Chattanooga to Charleston. It may be conceded that a through ticket, in and of itself, would not create a joint liability further than an obligation on each of several independent carriers, to transport the subject-matter, to which it applied, over the entire line of transit, for a compensation already paid or promised for the whole line. It was then required that, in all cases, a duplicate receipt must be forwarded by mail to the agent of the South-Carolina Railroad Company at Hamburg, and the important words were added, “ in order to fix responsibility on this Company.” It seems incontrovertible, that when the duplicate was forwarded, the contemplated responsibility was fixed. The Georgia Road needed no such advice or paper from a shipper, because (as already stated) the cotton was on board its cars from the first. What kind and degree of responsibility was to ensue upon the remitting by mail the duplicate receipt? Was it that of a common carrier, only when he received the cotton ? That begins only upon the receipt of goods or the acknowledgment of it. But this was expressly acknowledged to begin before. Was it the responsibility of a mere-forwarding agent, tendered in that distinct character, by the party who was also to be the carrier? Was it a mere scheme to supersede the occasion of an intermediate consignee or forwarding agent at Augusta or Hamburg ? If so, the shipper should have had the right to countermand at Augusta — to divert his cotton to Savannah- — or sell or otherwise dispose of it, in Augusta or elsewhere. How would that have answered the ends and the interests of the South-Carolina Railroad and of Charleston? How would the South-Carolina Railroad have received in Charleston, the freight already earned and expenses advanced ? Yet that was the course of the business. The freight, insólido, became payable when the cotton was delivered in Charleston, not before. Suppose the party here charged had acknowledged responsibility to be fixed when the duplicate receipt was forwarded by mail, and when the cotton was received, and according to its condition. Is it not palpable, ihat its transit to Charleston would not be secured — that the grand object would be liable to be frustrated ? If shippers were to understand that one of the Georgia Roads was exclusively an establishment of the State of Georgia, and therefore not amenable to action at law — quite beyond the powers of judgment and execution (and this has been said at bar to have been the condition of things in 1849)— and that they were to run all the hazards of loss and inadequate responsibility by porterage on drays between the Georgia and South-Carolina Railroads — ^-before any carrier had incurred an adequate and enforcible liability — they might, indeed, have hesitated to place a lot of cotton on a journey from Chattanooga to Charleston. It does appear most reasonable, that the “ responsibility” intended by the Company and justly understood by others to be intended by them, was beyond that of a mere forwarding agent before the cotton actually came to its hands. Before that period, it is not easy to understand what other kind of responsibility than that of a carrier could, or should have been fixed on the Company by virtue of the advertisement. It is not an unreasonable source of a rule of construction, that one contracting party intended and knew that the other should and did understand him in a particular sense.

The practical construction of a contract by -the acts of a party sought to be charged, opens a fair source of light upon the just interpretation. For short delivery the South-Oarolina Railroad responded, in cases, it is presumed, where the default was not in that Company’s road. This was argued to have arisen from the receipt of the entire freight, as a correlative duty. It is not perceived why reimbursement for any other species of injury should not be estimated as of the same and equal obligation. Indeed something more than only such responsibility seems to have been Avithin the purview and natural scope of the words of the advertisement. They are : With these precautions the business can and will be transacted mutually satisfactory to all concerned. The Roads pledge themselves to give all practicable despatch to cotton entrusted to them for transportation.” The “ business” was an entire transit over the whole line. The pledge, for “ all practicable despatch,” was by the “ Roadsf not by each separately, and it was for cotton entrusted to “ the?n” — it is not said to them separately and successively. If the cotton ever was entrusted to the roads collectively, it was only Avhen received at the upper terminus. If the pledge of the roads for all practicable despatch shall have its natural meaning — it is a pledge of all for the despatch of each — and the same may be said as to the pledge, that the business should be transacted in a manner mutually satisfactory. Such views are not weakened by attributing another and concurring object in rigidly exacting the duplicate receipt, as, for example, that the South-Carolina Railroad should have convenient specifications of the cotton to facilitate its transportation from the depot at Augusta to that at Hamburg; and a notice of the quantity coming forward, in convenient time to enable the Company to provide the motive power and cars requisite for proper expedition. The early receipt of the duplicate might well subserve these and such ends, while it should also fix the full liability of a carrier.

That a joint liability for all that was undertaken should have been intended by these Railroad Companies, is most reasonably to be inferred from terms that do not repel such construction, because it was a serious obstacle to a shipper at Chattanooga to find himself groping in the dark among three distinct carriers, with an inconvenient land porterage interposed, to fix the responsibility for default upon the real malfeasor, the more securely concealed from him, as well from the length of the line of transportation through two States, as from the want of agents to look after his interests or the expense and complication which would result from their procuration — the more especially in a business as yet new and unadjusted by experience. The obstacle would have been the greater, if it be, that one of the three hands who were to have custody of his cotton, pertained to a government to which insecurity is attributed as to ordinary modes of enforcing responsibility. The contract, as it has been interpreted, was apt, and perhaps indispensable, to remove such obstacle to a cherished and tempting adventure — and though the spirit may have been bold and the confidence inter sese strong that animated the Railroads in such an undertaking, yet the prize was glittering and they were eager to clutch it. However shockingly unjust it certainly is, to demand of one party a response for the misdeeds of another, or to lay on him the weight of another’s contract, yet the previous inquiry here is, Did the party sued enter the league with others named as confederates — and was that league lawful? and whenever he must say, in hcec fcedera veni, the shock to the moral sentiment vanishes, and the plain duty of a Court remains — to enforce the covenant, whatsoever the consequences.

That this was a question for the jury must, by this time, be abundantly manifest. It did not rest exclusively, or mainly, on the contract of affreightment — nor upon any one or several written instruments, with no ambiguities suitable to open the door to oral testimony — but upon this latter kind of testimony as well. Reasons may be found in the case cited from 8 Mees. & W. 421, to vindicate the course on Circuit in taking the sense of the jury; which cannot be disturbed if there be reasonable evidence to support it, though the question be doubtful.

If, when viewed as between themselves, the South-Carolina Railroad has not made the joint-contract with the Georgia Roads, which the jury has found, as between the parties here litigant; or if one or both the Georgia Roads have entailed, by their misdeeds, a burthen on the exchequer of this defendant, we fail to perceive any plausible or reputable ground upon which the real wrongdoer shall refuse to assume his own proper burthen. That matter, however, we are not at liberty to discuss.

It is adjudged, that in each of these cases the motion be dismissed.

O’Neall, Wardlaw, Glover and Munro, JJ., concurred.

Motion dismissed.  