Pereira v. Cent. Pac. R.R.

Ross, J. -The main question in this case is, whether the defendant, whose road ends at Ogden, in the Territory of Utah, contracted with the plaintiff to carry his fruit beyond its own terminus over other roads to the city of New- York. That question was submitted to a jury in the court below, and the finding in effect was that defendant did so contract.

It appeared in evidence that the plaintiff, being desirous of sending to the New York market a lot of pears, applied to the [93]general freight agent of the defendant corporation, to know what defendant would charge him per carload, to be sent by passenger train; plaintiff at the time informing the agent that it was necessary that the fruit should be transported to its destination within ten or twelve days. The agent replied that he did not then know what it would cost, but thought about $1,500 per carload; and further, that he could not send it through to New York by passenger train, but could send it by passenger train as far as Omaha, and from there to New York by fast freight train, and that thus sent it would reach New York within the time mentioned. The agent promised to let plaintiff know within a few days, as to the terms upon which defendant would take the fruit, and accordingly wrote and sent to the plaintiff this letter:

“ Central Pacific Eailroad -Company,

“ General Freight Oeeice,

“ Sacramento, Cal., Nov. 14,1871. “John Pereira, Esq., Jamestown, Tuolumne Co., Cal.

“ Dear /Sir : I am in receipt of your favor of November 10th, and have this day telegraphed you as follows: Fruit Stockton to New York, to Omaha by passenger train, thence by freight, ten hundred and seventy-five ($1,075), cy. per car. Freight must be prepaid, or else guaranteed by responsible parties. The current rates on wine, Stockton to New York, are as follows : Wine in wood, owner’s risk of leakage, carloads of 18,-000 pounds, and over, $2.50 per 100 pounds—less than 18,000 pounds, and over 3000, $3.50 per 100 pounds—3000 pounds, and under, $4.50 per 100 pounds. It is not probable that there will be any material change in these rates before next spring.

“ Yours truly,

" C. W. Smith, G. F. A. ”

Plaintiff accepted the terms thus proposed, and accordingly delivered to the defendant on the 23d of November, 1871, one carload, consisting of 536 boxes of pears, consigned to L. Benedict, New York city; and at the same time executed to defendant the guarantee it required, that the freight money, $1,075, would be paid to defendant on the delivery of the fruit in New York. Such delay occurred in the transportation of this lot of