
    H. W. Brown & Co. v. D. W. Mott & Brothers.
    "Where goods are described in the bill of lading as destined for a place beyond that to which the carrier undertakes to transport them, it is his duty, in the absence of contrary instruction or usage, to forward them by the usual conveyance toward their place of ultimate destination.
    Where goods are marked with the name and place of residence of the owner, and are described in the bill of lading as so marked, and nothing further appears to indicate their destination, the residence of the owner will be held to be their ultimate place of destination.
    .A bill of lading for the transportation of goods from New York to Philadelphia was executed in the following form : “ Received of Davis, Rhodes & Co. (1) one case merchandise, marked D. W. Mott & Bros., Memphis, Tenn., to be transported to Philadelphia, and there delivered to the Penn. R. R., all rail to Cincinnati, Ohio.” Nothing further appeared in the bill, or upon the package, to indicate its destination. The goods were duly received at Cincinnati by the agents of the Pennsylvania Railroad Company, and by"them forwarded in the usual course of conveyance to Memphis, but were lost on their voyage thither. In an action by the owner of the goods against the forwarding agents :
    
      Meld, that, prima facie, the ultimate destination of the goods was Memphis, and not Cincinnati, and that, in the absence of evidence to the contrary, the agents were justified in forwarding them to Memphis, and were not liable to the owners for their loss.
    
      In a proceeding without action, under section 495 of the code, the submission, the agreed case, and the judgment of the court thereupon, constitute the complete record, and it is not necessary, in order to a review and reversal of such judgment by proceedings in error, that there should be a motion for a new trial, or a bill of exceptions.
    Error to the Superior Court of Cincinnati.
    The original case came into the Superior Court in special term, by an agreed statement and submission, under section 495 of the code, without any process or pleading.The case made by the agreed statement, so far as the saméis material to the decision of the court, is as follows:
    In September, 1866, the defendants in error, residing in Memphis, Tennessee, purchased in New York a lot of merchandise, and caused it to be shipped west, via Philadelphia. The goods were carried to Philadelphia by the Camden and Amboy Railroad and Transportation Company, and. in the bill of lading given by that company, they are described and their destination indicated, according to the-marks and directions appearing upon the packages, and which had been placed there by direction of the owners. The bill of lading reads as follows :
    “ Received of Davis, Rhodes & Co. (1) one case merchandise, marked D. ~W. Mott & Bros., Memphis, Tenn., to be-transported to Philadelphia, and there delivered to the Penn. R. R., all rail to Cincinnati, Ohio, upon the following terms,” etc.
    Nothing further appears in the bill of lading to show" what was the final destination of the goods, whether it was-Memphis, Tennessee, or Cincinnati, Ohio.
    The goods came safely to Cincinnati, by way of the Pennsylvania railroad, and were there delivered to the plaintiffs in error, the agents of the railroad company, and by them promptly forwarded by steamboat to be transported and delivered to the owners at Memphis, Tennessee. Neither Brown & Co., nor their principal, the Pennsylvania Railroad Company, had any knowledge as to the true destination of the goods, except what was to be derived from an inspection of the bill of lading and the marks on the package.
    On the voyage to Memphis, the goods, with the boat on which they were carried, were lost; and upon these facts, the owners, the defendants in error, claimed that they were entitled to recover the value of the goods from II. W. Brown & Co., on the ground that Cincinnati, and not Memphis, was their final destination, and that they were shipped to Memphis without authority from the owners.
    Upon the case thus made, the Superior Court in special term gave judgment for D. W. Mott & Bros, for eight hundred and seventy-six dollars, the agreed value of the goods. On proceedings in error, in the same court in general term, this judgment was affirmed, and it is to reverse these j udgments that the present petition in error is filed here.
    
      King $ Thompson, for plaintiffs in error:
    That it is the duty of common carriers, receiving goods directed to a point beyond the terminus of their own particular route, and without any special instructions to the contrary, to forward them, seems very clear from the authorities.
    
      Nutting v. Conn. Riv. R. R. Co., 1 Gray, 502; Van Santvoord et al. v. St. John & Tousey, 6 Hill, 157. These cases are strengthened, not weakened, by the following citations of our opponents: Johnson v. N. Y. C. R. R. Co., 31 Barb. 196; Ashley v. Kellogg, 8 Cowen, 223; Elmore v. Naugatuck R. R. Co., 23 Conn. 457; Rome City R. R. Co. v. Sullivan, 25 Ga. 228.
    But it is claimed that the written part of the receipt in the case at bar makes a special limitation of this duty. We say the meaning is this : the goods were received to be transported to Memphis, but the “ all-rail ” route was to-be used as far as Cincinnati, Ohio. The words “to Cincinnati” simply limit the words “all rail.” Moreover, no consignee was named to take charge of the goods at Gincinnati; the railroad company had no warehouse, and their agents had no knowledge as to where Mott was, or when he would be in Cincinnati. In this connection, we refer to the letter of Mott & Bros, to the secretary of the Boatman’s Insurance Company, Cincinnati, wherein the writer says, “I inclose you receipt for that case of goods shipped by Messrs. Davis, Rhodes & Co. to Cincinnati. They had my place of business (or rather headquarters and post-office), and when I told them to ship them to Cincinnati, marked them as you see.” Had this information been given to the carriers, or their agents, the goods could have been delivered on arrival at Cincinnati, and the loss would not have happened. There was, therefore, gross neglect on the part of the owners’ agents. This letter adds, “ If Mr. Brown, of II. "W. Brown & Co., is responsible, I would like to know it before leaving here.” “ Responsible” here means able to pay. Mott then asserted no claim against either of the great carrier corporations, although they all bad offices in New York where he then was, and nearly eight months after the loss comes to Cincinnati and seeks to impose upon a mere agent the brunt of the battle.
    In the argument of counsel for Mott & Bros., in the general term of the Court below, two or three other points were made, which we desire briefly to notice :
    1. It was claimed that no exceptions were taken to the judgment of special term. In this they are in error. The transcript shows that an exception was taken.
    As to having a formal “ bill of exceptions,” this was unnecessary, as the only object of such a bill is to have a true record certified to the court above. In this case the record was made up at the beginning, by the agreed statement of facts. See Code, sec. 496.
    On this agreed statement the court had no facts to find; but simply gave judgment, in the usual form, for plaintiffs below.
    To have formally moved for a new trial, in a case like this, would have been like moving for a new trial in a case where judgment had been entered on a demurrer to the petition. “A new trial is a re-examination, in the same •court, of an issue of fact, after a verdict by a jury, report of a referee, or a decision of the court.” Code, sec. 297.
    In the case at bar there was no issue of fact between tho parties. The facts were agreed to and reduced to writing. The error complained of, is, that the law was not properly-applied to the facts.
    2. It was further claimed by our opponents, that “ the agreed statement shows the parties did not intend to take the case up on error.”
    Nothing of the kind is thus shown; and in the absence of an agreement to the contrary, a judgment thus recovered, is “ subject to reversal in the same manner as if it had been recovered in an action.” Code, sec. 497.
    3. It was further contended that Brown & Co. waived the question as to the propriety of the action against themselves, instead of their principals. Of this there is no evi•dence. On the contrary, the record shows that the very question presented to the court was, whether these agents were liable, under the circumstances of the case. This point, however, is not material; for we admit that an agent can not shield himself, from his liability for an illegal ~aet, by any supposed authority derived from his principal.
    As to the want of an affidavit, in the court below, that the controversy was “real” we simply refer to section 495 •of the code.
    This is a special statutory mode by which jurisdiction of a case may be obtained. Must it, or not, be strictly followed?
    
      Huston § Skunk, for defendants in error:
    The contract of transportation, was specially limited to Cincinnati, and neither the railroad company, nor its agents, had any right to forward the goods, without •authority from the owners.
    That the parties intended this appears:
    1. Erom the fact that they constitute themselves the •consignees at Cincinnati. No consignee being named in the bill of lading, the law merchant inserted the names of the owners as such, and the carrier and its agents were bound to take notice of this. 1 Parsons on Shipping and Admiralty, 192.
    2. Erom the fact that Mott & Bros, promptly followed their goods to Cincinnati, and without delay effected an arrangement with the agent of the Memphis Packet Company to have the same forwarded by that line to Memphis, and gave him an order for them upon the railroad company, and then insured them in the Boatmen’s Insurance Company to go by that line. These goods consisted of various-lots purchased at different houses. Mott & Bros, then first
    •learned that Brown & Co., without any instructions from them, and without their knowledge, had received and forwarded a portion of said goods, including the box in question. The packet company got the balance.
    3. Erom the tenor of their subsequent letter to the insurance company, “Exhibit C,” referred to by opposing counsel, written before any controversy, in which they said: “They (the shippers) had my place of business (or rather headquarters and post-office), and when I told them to ship them to Cincinnati, marked them as you see.”
    4. It will be observed that the receipt “A,” apart from the express limitation to Cincinnati, in the body, contains-at the bottom, conspicuously printed, the following notice, viz: “ Eor through bills of lading, exchange this receipt at offices of Pennsylvania Railroad, No. 1 Astor House, and'. No. 1 South William street, New York.”
    A different kind of bill of ladiug was provided and used for through transportation. If the owners had intended, this contract to exteud to Memphis, they would have exchanged the receipt for a through bill of lading, as required by the notice aforesaid.
    5. In the agreed statement of facts.(p. 1), the construction of the contract, as herein claimed, is expressed as follows: “They (Mott & Bros.) purchased goods at different houses and at different dates, and directed their goods to> be marked and directed as in bill hereinafter set forth, and shipped them to Cincinnati, Ohio, by the Pennsylvania Railroad ?”
    Counsel for Brown & Co. seem to think there is some ambiguity in the language used in the receipt. There certainly is no ambiguity in the above language showing what the parties understood the receipt to mean.
    “What was the power and what was the duty of the railroad company with respect to the goods, under the facts ?” The claim of Brown & Co., in the submitted case, was that, a-s agents of the Pennsylvania Railroad Company, they were “instructed by them to forward all goods marked for points beyond this city,” and in so doing, “they followed the settled custom of said company at this point, and their custom as agents of said company” (p. 3). It is admitted that Mott & Bros, had no notice of any such instructions or custom. There is no evidence of any such instructions or custom, and the same are not stated as admitted facts in the agreed statement.
    We submit that even if Brown & Co. had general instructions from their principal, such as claimed and followed by them in forwarding the goods according to their custom, Mott & Bros., being ignorant of these instructions and custom, and not having authorized them to forward the goods, were not bound by them. We know of no law that would make them liable in such a case. Instructions given under such circumstances, or a usage in contravention of a general-principle of law, must be brought to the knowledge of parties and proven, in order to charge them.
    Counsel for Brown & Co., in discussing the meaning of the receipt and the duty of the railroad company thereunder, say: “If a consignee at Cincinnati bad been named, the duty would- have been to deliver to such consignee; but in the absence of such intermediate consignee, the Pennsylvania Railroad Company was bound to carry to the terminus of its own route, and then forward them, by the usual route, to their ultimate destination.”
    They ignore the principle that Mott & Bros, were the consignees at Cincinnati, in the absence of any named, and justify the act of forwarding the goods on the ground that the railroad company had no warehouse in -Cincinnati There is no proof of this alleged fact. Besides, exhibit ■“ B” shows that the goods reached Cincinnati by the Little Miami and Columbus and Xenia Railroad, which had warehouses. There was no reason, in fact or in law, for this excuse. What if “Brown & Co. had no knowledge as to where Mr. Mott then was, or when, if at all, he would be in Cincinnati?” Was not their duty plain, to hold the goods a proper time for the consignees to call for them, and -on their failure to do so, to store them at the owner’s expense?
    Counsel for Brown & Co. then announce the general proposition: “That it is the duty of common carriers receiving goods directed to a point beyond the.terminus of their own particular route, and without any special instructions to the contrary, to forward them;” and to establish it they cite two cases: Nutting v. Conn. River R. R. Co., 1 Gray, 502; Van Santvoord et al. v. St. John & Tousey, 6 Hill, 157.
    We might admit this general doctrine without compromising our position in this case. Eor the point we raise is, that there was a special limitation in the contract by virtue of which the Pennsylvania Railroad Company had no control over nor duty to perform in reference to the goods beyond Cincinnati.
    But the two cases cited are not analogous to the case at bar, and not, therefoi'e, pertinent authorities.
    We find no decision construing words of limitation in a receipt like this. But, in view of the whole tenor of the receipt, of the fact of it being used instead of a “ through bill of lading” issued by the same line, of the understanding of the parties express and implied, and of the bona fide acts of Mott & Bros., in pursuance of such understanding, it would seem a strained and unreasonable construction to say it was intended simply to define the route to Cincinnati, and leave the rest of the way to the option of the earlier and its agents.
    The theory of counsel for B. & Co. make's the mere marks 
      govern the contract. These may or may not indicate the destination of the goods. They are intended mainly for identity.
    
    This appears from the case already cited from 6 Hill. Chancellor Walworth, referring to the receipt, says: “ It is a simple acknowledgment, by the master of the boat, that he had received from St. John & Tousey a box of goods-with a particular mark thereon, which, so far as the giving of the receipt was concerned, was a mere mark of identity.”
    In same case, page 165, Sen. Putnam says: “ The clause-in it (the receipt) designating the marks upon the box, instead of implying an agreement to carry to any particular-place, is merely descriptive of the box.”
    Also, page 168, Sen. Rhoades says : “ The marks on the-box were copied into the receipt by the agent of the plaintiffs in error, as the most common and convenient way of giving an intelligible description of the property in their-hands.”
    As directly bearing upon the same point, we refer to the case of Rome Railroad Co. v. Sullivan, Cabot & Co., 25 Georgia, 228.
    Of like purport, on the subject of marks on goods as affecting the liability of the carrier, is the decision in the case of Elmore v. Naugatuck Railroad Co., 23 Conn. 457; also, 33 Conn. 178.
    As to these proceedings in error, they were irregular in this, that no motion for a new trial was filed as required by section 300 of the code, and no bill of exceptions taken as-required by sections 290-294 and 693 of the code.
    Such motion must be made, not only where there is an issue of fact, but where the court may err in applying the-law to the facts.
    Without going into a full discussion of this question, we refer to the above sections of the code, and also to sections 297, No. 6, of the code; section 497 of the code; Ide v. Churchill, 14 Ohio St. 372-378.
    As a sort of set-off against the above point, opposing; counsel raise an objection to the form in which the case was submitted, to the effect that it did not appear by affidavit that the controversy was real. Code, sec. 495.
    The evident purpose of this formality is to keep unreal cases out of court. If the court be satisfied, without such affidavit, that the controversy is real, the plain intention of the statute is met.
   Welch, C. J.

It is well-settled law, that where goods are described in the bill of lading as destined for a place beyond the terminus of the line over which the carrier undertakes to transport thém, it is the duty of the carrier, in the absence of contrary instructions or usage, to forward them by the usual conveyances for their ultimate destination. It seems to be equally well settled, that where goods are marked-with the name and place of residence of the owner, aud are described in the bill of lading as so marked, in the absence of anything appearing to the contrary, either in the bill of lading, the marks upon the goods, or otherwise, the residence of the owner is to be taken as their ultimate destination. This bill of lading describes the box of goods as marked “ D. W. Mott & Bro., Memphis, Tenn.” If nothing further as to its [dace of destination has appeared in the bill of lading, or on the box, Memphis, Tennessee, would, prima fade, be taken as that place, and each carrier through-whose hands it passed, would have been justified in forwarding it accordingly. But the bill of lading, in addition to the name and address of the owners, contains also the words “ all rail to Cincinnati,” and it is in giving effect and meaniug to these words that the trouble arises. Are they words indicating the destination of the goods, or words indicating the manner of their conveyance? Do they signify that the goods are to be carried “ to Cincin-. nati,” and no farther, or do they mean that in their journey from New York to Memphis, they shall be carried by the “all-rail” route as far as Cincinnati? The plaintiffs in error, acting as agents for the Pennsylvania Railroad Company, in good faith it seems, and in the absence of contrary directions, adopted tlie latter construction; and we are not prepared to say that they erred. On the contrary, it seems to all of us that such is the more reasonable and obvious reading of the paper. No consignee at Cincinnati is named, and it would be quite unreasonable to imply that the own- • ers were the consignees, without the further implication that their place of residence was to be the place of delivery.

In our judgment, therefore, the court below erred in holding that, upon the agreed case, the plaintiffs in error were liable for the loss of the goods.

It is suggested by counsel, but apparently not insisted on, that in order to enable the plaintiffs to have the ease reviewed on error, there should have been a motion for a new trial and a bill of exceptions. "We do not so understand the law. There was no issue of fact. The facts were ascertained and agreed upon by the parties. Their agreed statements took the place of a special finding by the jury, and the court only pronounced the law arising upon those facts. There was nothing to put in a bill of exceptions. The record was complete without it. The provisions of the code under which the proceeding was had (sec. 495-497), declare that “ the case, the submission, and the judgment shall constitute the record.”

Judgment reversed.  