Stout v. Coffin

By the Court,

Rhodes, J. The plaintiffs sue to recover the value of goods which they allege they delivered to the defendant, to be shipped to the County of Fresno, and which the defendant received as a “ common carrier, warehouseman and forwarding merchant,” to be safely and securely taken, stored and kept by him, “ and by the boat next departing from the said Town of Martinez to be safely and securely taken and conveyed, or caused to be conveyed by the said defendant, for the said plaintiffs from the said Town of Martinez to the County of Fresno, inddie State aforesaid, and then and there, at the said County of Fresno, to be safely and securely delivered by the defendant, his servant or agents, to the said plaintiffs, for a certain reward, to be paid by the said plaintiffs to the said defendant therefor.”

[66]The breach alleged, is that the defendant neglected and refused to store and safely keep the goods, and neglected and refused to convey, or cause to be conveyed, the goods from Martinez to Fresno County, or there to be delivered to the plaintiffs, but wrongfully and negligently permitted them to be taken and carried away by persons to the plaintiffs unknown, and neglects and refuses to deliver them to the plaintiffs.

The defendant denies that he was a warehouseman or forwarding merchant, or that he was a common carrier, except by his ferryboat between Martinez and Benicia, and denies all the allegations of the complaint respecting the contract and his receipt of the goods, and denies that he permitted them to be taken or carried away, because he says he never had the charge or custody of the goods.

The defendant requested the Court to give the following instruction to the jury : “ Before the jury can rightfully render a verdict in favor of the plaintiffs against the defendant, it must be found and determined from the evidence that defendant contracted with plaintiffs to carry, or cause to be carried, the goods mentioned in the complaint, from Martinez in Contra Costa County, to the County of Fresno.” The Court refused the instruction, and the defendant excepted, and now assigns the refusal as error.

The words “ carry or cause to be carried ” employed in the instruction, are of similar import to the words “ conveyed or caused to be conveyed ” as used in the complaint. The respondents object to the instruction, on the ground that it assumes that it was incumbent on them to prove, that the defendant undertook to transport the goods from Martinez to Fresno, and say that the gist of the action is that the defendant received the goods as a bailee for shipment to a specified place, instead of which he allowed them to be taken away and lost. One of the material issues of fact raised by the pleadings, is whether the plaintiffs and defendant entered into the contract mentioned in the complaint; and a material and substantial portion of the contract was, that the goods were- to be “ taken and conveyed or caused to be conveyed by the said defendant ”