{
  "id": 5277282,
  "name": "Charles Schlesinger and Elias B. Schlesinger v. The West Shore R. R. Co., Grand Trunk R. R. Co. and Wabash R. R. Co.",
  "name_abbreviation": "Schlesinger v. West Shore R. R.",
  "decision_date": "1900-04-04",
  "docket_number": "",
  "first_page": "273",
  "last_page": "277",
  "citations": [
    {
      "type": "official",
      "cite": "88 Ill. App. 273"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [
    {
      "cite": "178 Ill. 506",
      "category": "reporters:state",
      "reporter": "Ill.",
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      ],
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    {
      "cite": "48 Ill. 425",
      "category": "reporters:state",
      "reporter": "Ill.",
      "case_ids": [
        5230005
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      "opinion_index": 0,
      "case_paths": [
        "/ill/48/0425-01"
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  "last_updated": "2023-07-14T16:36:14.009445+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Charles Schlesinger and Elias B. Schlesinger v. The West Shore R. R. Co., Grand Trunk R. R. Co. and Wabash R. R. Co."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Shepard\ndelivered the opinion of the court.\nThe appellees were sued by the appellants to recover the value of five barrels of whiskey, shipped from. New York city by the appellants, November 10, 1890, by the so-called \u201cHoosac Tunnel. Fast Freight Line,\u201d to a .consignee in Chicago.\nAt the close of plaintiffs\u2019 case the jury were directed by the court to return a verdict finding the issues for the defendants, the appellees.\nA bill of lading was issued for the goods and delivered to appellants, which, in so far as is material to the case at bar, was as follows :\n\u201cHoosac Tunnel Fast Freight Line, via West Shore, Grand Trunk, Wabash Railroad and connections.\nNew York, Nov. 10th, 1890.\nReceived from C. S. Schlesinger the property described below: * * * marked, consigned and destined as indicated below, which said company agrees to carry to the said destination. * * *\nHarks, consignees and destination.\nB. H. Kemper, Description of articles.\nChicago, Ill. 5 brls. whiskey.\nCare Berkenfield Ex. F. W. Richardson, agent.\u201d\nIt was admitted that the whiskey was delivered by the appellee Wabash Railroad Company, November 18, 1890, to B. H. Kemper (at Chicago), without the bill of lading.\nOne of the conditions on the face of the bill of lading was to the effect that if the word \u201c order \u201d should not be written immediately before or after the name of the consignee, the property might, at the option of the carrier, be delivered without the production or surrender of the bill of lading.\nIt was proved by one Alexander Berkenfield that he worked for appellants in November, 1890, and had, previously to that time, received\u2018over the Wabash road numerous other barrels of whiskey for appellants, and that he took and presented to the \u201cnotice clerk\u201d of the Wabash road, in the month of November, 1890, \u201c a certain bill of lading;\u201d and it was attempted to be proved by the same witness that he was the same as 61 Berkenfield Express,\u201d to whose care the goods were consigned, and that he told the notice clerk that the goods were consigned to his care and should be delivered to him. as agent for appellant, but the questions were objected to and the court refused to allow them to be answered.\nWe have carefully examined all the questions that were propounded to the witness to which answers were not permitted, in order to see what favorable answers thereto, if given, would have tended to prove, and though every intendment most favorable to the appellants be given to such questions and disallowed answers, they would not tend to establish that the purported conversation between the witness and the notice clerk was held before the consigned goods were delivered to Kemper.\nOne of the appellants testified that the goods should have arrived in Chicago about November 16th, if they were shipped on the tenth\u2014the date of the bill of lading.\nPossibly there may be a reasonable inference, from one of the questions put to the witness, that the expected answer would have been that the conversation occurred after the goods reached Chicago, but, non constat, it was not until after they were delivered, to Kemper, on November 18th. We are considering this aspect of the case upon the theory that a sufficiently early notice to the carrier not to deliver to Kemper would have made a subsequent delivery to Kemper an act for which appellees or some of them would have been liable to appellants, which is a doubtful proposition, to say the least of it. But holding that by no reasonable inference can such notice to the carrier be found to have been given before the delivery to Kemper, the purely law question remains, to whom were the goods consigned, and what is the right of a carrier to deliver to a consignee, without the production of the bill of lading.\nThe case of Chicago & Northwestern Railway Company v. Merrill, 48 Ill. 425, is very similar in its facts to this one.\nThere the consigned goods were marked: \u201c John L. Page, Winnebago, goods by R. R. care of American Express Co., C. O. D.,\u201d and they were delivered to Page by the railroad company.\nPage turned out to be insolvent, and the consignor sued the railroad company for the value of the goods, and recovered in the Circuit Court; but the Supreme Court reversed the judgment, holding that with the safe delivery of the goods to Page, the liability of the railroad company ended. In the course of the opinion, in speaking of the fact' that besides the name of Page, as consignee, the words \u201c care of American Express Co.\u201d were written upon the box, it is said:\n\u201c We understand these words upon the box as merely indicating that if Page, the consignee, could not be found to receive the goods, the appellant (Ey. Co.) might deliver them into the care of the express company. But Page did appear, and claimed the goods, and the appellant delivered them to him, as it was its duty to do.\u201d\nHow, that case being in point, Kemper, in this case, was the consignee, and being so, the title to the whiskey was vested in him, subject only as between himself and the consignor, to the right of stoppage in transitu.\nGiving to the questions propounded to Berkenfield the full effect of testimony upon all the subjects inquired about, they are incapable by any reasonable construction or inference of being extended so far as to even tend .to show that Berkenfield had authority, or attempted to assert it, to exercise in behalf of appellants their right to stop and reclaim the goods while in transit.\nUpon the other aspect of the question as to the right of a carrier to make delivery to the consignee without producing the bill of lading, or in other words, in whom was vested the legal title to the whiskey in controversy, the case of Lake Shore and M. S. Ry. Co. v. Nat. Live Stock Bank, 178 Ill. 506, seems to be decisive..\nIt will not, we suppose, be disputed that a delivery by a carrier at the place of destination, to the consignee, in whom is vested the unqualified legal title to the goods, is sufficient to protect the carrier against further liability, whether the delivery was made upon the production or delivery of the bill of lading or not.\nParts of the opinion in the case last referred to, are as follows:\n\u201c The effect of a consignment of goods in a bill of lading is to vest the property therein in the consignee. A delivery of goods to a common carrier consigned to a particular person, without specific directions different from ordinary usage, is constructively a delivery to the consignee. Where the vendee is the consignee, the delivery of goods to a common carrier without qualifications,consigned to that vendee, is in law a constructive delivery to the consignee from the time of shipment and the commencement of the carriage. 5 It is well settled that delivery of goods to a common carrier * * * for conveyance to him (the purchaser), or to a place designated by him, constitutes an actual receipt by the purchaser. In such cases the carrier is in contemplation of law, the bailee of the person to whom\u2014not by whom\u2014tfie goods are sent, the latter, in employing- the carrier, being considered as an agent of the former for that purpose.\u2019 Benjamin on Sales, 2d Am. Ed., Bar. 693, p. 648.\u201d\nAnd again, on page 518:\n\u201c By the consignment and delivery of the goods to the defendant carrier to be conveyed to the consignee, without condition or qualification, the property in the goods became vested in the consignee, and could be affected, so far as the consignor was concerned, only by the right of stoppage in transitu.\u201d\nIt is not claimed that there were any conditions or qualifications connected with the delivery of the whiskey by appellants to the carrier, beyond the fact that, as expressed on the face of the bill of lading, it was consigned to Kemper, in the care of Berkenfield\u2019s express. .\nKemper was the consignee. He appearing and claiming the goods, and they having been delivered to him before, so far as appears either expressly or by intendment from any offered evidence, the appellants had exercised or sought to exercise any possible right they might have had to reclaim the property, the liability of the carrier was at an end.\nThe Superior Court rightly directed the verdict in favor of the defendants, and the judgment is affirmed.\nMr. Justice Ereemau dissents.",
        "type": "majority",
        "author": "Mr. Justice Shepard"
      }
    ],
    "attorneys": [
      "Edward Maher and Robert F. Kolb, attorneys for appellants.",
      "Winston & Meagher, attorneys for the West Shore R. R. Co.; S. A. Lynde, attorney for the Grand Trunk Railroad Co.; George B. Burnett and Lee & Hay, attorneys for the Wabash Railroad Co., appellees; Frederick R. Babcock and Edward S. Whitney of counsel."
    ],
    "corrections": "",
    "head_matter": "Charles Schlesinger and Elias B. Schlesinger v. The West Shore R. R. Co., Grand Trunk R. R. Co. and Wabash R. R. Co.\n1. Common Carriers \u2014 Goods Shipped to One Person in Care of Another.\u2014Goods shipped to one person, as consignee, in care of another, are to.be delivered to the consignee, and in case he can not be found, then to the one in whose care they are shipped.\n2. Same \u2014Delivery of Goods to, Constitutes Receipt by'Purchaser.\u2014 Delivery of goods to a common carrier for conveyance to the purchaser or to a place designated by him, constitutes an actual receipt by the purchaser.\n3. Stoppage in Transitu\u2014Remedy of Consignor after Delivery of Goods to the Carrier.\u2014By the consignment and delivery of the goods to the carrier to be conveyed to the consignee, without condition or qualification, the property in the goods becomes vested in the assignee, and can be affected, so far as the consignor is concerned, only by the right of stoppage in transitu.\nAssumpsit.\u2014Common counts. Appeal from the Superior Court of Cook County; the Hon. John Barton Payne, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1899.\nAffirmed.\nMr. Justice Freeman dissenting.\nOpinion filed April 4, 1900.\nEdward Maher and Robert F. Kolb, attorneys for appellants.\nWinston & Meagher, attorneys for the West Shore R. R. Co.; S. A. Lynde, attorney for the Grand Trunk Railroad Co.; George B. Burnett and Lee & Hay, attorneys for the Wabash Railroad Co., appellees; Frederick R. Babcock and Edward S. Whitney of counsel."
  },
  "file_name": "0273-01",
  "first_page_order": 297,
  "last_page_order": 301
}
