McCann v. Baltimore & Ohio Rail Road

Goldsborough, J., delivered the opinion of this Court: The action in this case was brought by the appellant against the appellee, to recover the value of a looking-glass ²¹⁰ shipped over the road of the appellee from the- City of Baltimore to the City of St. Louis, under a special contract sefi out in the appellant’s declaration. To this' declaration the appellee pleaded six pleas. It was agreed that in this case, the following-entry he made: “errors of pleading waived, without prejudice to the rights of the defendants or plaintiff, to raise any questions for tho decision of the Court in the shape of prayers for instruction to the jury, that they might have done by any special pleading applicable to the premises.” At the trial, after the evidence had been submitted, the appellant and appellee each ashed an instruction from the Court; the appellant’s prayer was rejected, and the appellee’s granted. From this ruling of the- Court, this appeal was taken.

In examining the contract with the conditions annexed, and the evidence in tho cause, .we are of opinion that the responsibility of the appellee ceased upon the unloading of the cars at the terminus of its railroad on the Ohio River. The provision incorporated in the contract that the property in controversy, might, in certain contingencies, be transported by steam boat from tho Ohio River, to the City of St. Louis, forbids the interpretation that the “unloading of the cars,” could mean unloading at the place of destination. This view of the contract justified the Court below in rejecting the appellant’s prayer. Considering the appellee’s prayer, we find several distinct, substantive propositions: The first, that,“the paper offered in evidence by the plaintiff, the receipt of the B. & O. R. R. Co. with the memorandum,” became a special contract, is clear, the appellant having declared on it as such.

In reference to the paper purporting to be a release of Samson Oariss & Co., we find by reference to the exception taken by the appellant, that it states the appellees proved it, yet the evidence to establish the agency of Dnkehart to execute it does not appear from the record;