Goodman v. Merchants' Despatch Transportation Co.

Opinion by

Beaver, J.,

All the assignments of error in this case, except four, relate to a deposition taken under commission by the defendant, portions of which were used by the plaintiffs in making out their case. The deposition was used by the plaintiffs by permission of the court, under conditions which seem to be reasonable. *287Having nsed only such portions of the deposition as suited their convenience, it was only fair that the defendant should be allowed to use the remainder, so far as it was competent evidence, as cross-examination. The time for the introduction of such parts of the deposition as were not used by the plaintiffs was within the discretion of the court. That discretion, it seems to us, was properly exercised. No part of the deposition could have been excluded on the ground of incompetency, and all the assignments of error relating thereto are, therefore, overruled.

There are practically but two questions in the case. Was the bill of lading produced by defendant on the call of the plaintiffs and offered by them properly excluded? We think not. The bill of lading which was furnished voluntarily by the defendant to the plaintiffs on the surrender of the shipping receipt was in part at least the contract between the parties. The shipping receipt provides that “ The acceptance of this receipt for goods made subject to the provisions of the bill of lading of this Company makes this an agreement between the Merchants’ Despatch Transportation Company and carriers engaged in transporting said goods and all parties interested in the property.” The plaintiffs should not have been confined, therefore, to the shipping receipt, but were entitled to have the bill of lading, as to the provisions of which the receipt was made subject, in evidence as a part of the agreement between the plaintiffs and defendant. The lapse of time between the shipping of the goods and the exchange of the shipping receipt for the bill of lading was not material in the case. There was no claim for loss or damage in transportation but for a wrong delivery, after the goods reached their destination. It seems to us that the bill of lading should have been received at the time it was offered and, if the contents thereof or subsequent development of the case necessitated the limiting of its effect, it was entirely within the control of the court, and its effect could have been so limited.

The facts in the case should have been submitted to the jury. Michell’s own testimony shows that he was merely agent of W. B. Robinson at Tyler, Texas, to whom the goods were addressed at the time they were ordered, and was paid by the month for conducting the business. W. B. Robinson was not merely a name under which Michell purchased goods but was *288the name of a person actually in being, apparently reliable and responsible for his contracts, for whom Michell was agent. The goods previously shipped by the plaintiffs to W. B. Robinson were shipped and received during Michell’s agency which continued from May, 1889 to January, 1890. It was, therefore, error for the court to say: “ These goods were sold to Michell in the name under which he was then buying goods and under which he had been buying goods from the plaintiff.” Whether or not the goods which are the subject of the present controversy were sent to W. B. Robinson under the arrangement alleged to have been made by Michell with Thatcher, the traveling agent of the plaintiffs, was a question for the jury. If the plaintiffs sent the goods to W. B. Robinson, Tyler, Texas, in accordance with their previous mode of making such shipments, and without any knowledge that W. B. Robinson had sold his business to Michell, and not knowing that it had been removed from Tyler, Texas, to Dallas, Texas, and the carriers for the defendant, without the plaintiffs’ consent, re-shipped the goods from Tyler to Michell & Co. of Dallas, a verdict for the plaintiff could have been sustained, if the defendant were liable under its contract for a wrong delivery. What the contract was, whether or not under it the defendant is liable as common carrier or merely as forwarding merchant, and whether or not the plaintiffs are estopped, by reason of delay in making their claim or by the acceptance of a part of the price of the goods forwarded from the person who received them, are all questions which will be properly raised under the contract between the plaintiffs and defendant, which was not fully in evidence and is not now a part of the record. The first and twelfth assignments of error are sustained and the judgment is, therefore, reversed and a new venire awarded.