Illinois Central Railroad Company v. Lucius S. Cowles.
1. Depositions—their requisites. A notice to take a deposition stated that it would be taken at a certain hour; the caption stated that the deposition was taken *117on the day named, “by virtue of the annexed notice,” and the certificate stated that the deposition “ was taken at the time mentioned in the caption thereof.” The notice" being attached, it was held that it sufficiently appeared at what hour the deposition was taken.
2. Carrier’s receipt — not conclusive. The statement in a receipt given by a railroad company that goods were received in good order, is not conclusive evidence of that fact, but it is competent to show they were not in good order.
3. Evidence — burden of proof. By such a receipt, however, the onus is put upon the carrier, in an action against him for a non-delivery of the goods, to show they were not in the condition stated in the receipt.
4. New trial — in a doubtful case. Where the evidence in a cause leaves it doubtful whether the particular carrier, who is sued for a loss of goods, or another from whom that carrier received the goods, is liable, the Supreme Court will not disturb the finding in the court below.
5. Common carriers — to whom liable. Semble, where a contract is made with a railroad company to carry goods to a given point, and while in transitu the goods are reshipped by that company upon another road, the latter company would be liable directly to the owner for a loss of the goods through their neglect.
Appeal from the Circuit Court of Stephenson county; the Hon. Benjamin R. Sheldon, Judge, presiding.
This suit was originally instituted by Lucius S. Cowles against the Illinois Central Railroad Company, before a justice of the peace in Stephenson county, for the recovery of the value of a quantity of goods which were shipped upon their road, and alleged to have been lost by them in trransitu.
The trial before the justice resulted in a judgment for the plaintiff for $75.66, from which the Company took an appeal to the Circuit Court.
Previous to the trial in the Circuit Court the defendants moved to suppress the deposition of D. W. Stead, upon the ground that it did not appear to have been taken at the hour fixed in the notice for taking the same.
The notice under which the deposition was taken, and which was attached thereto, is as follows:
*118STATE OF ILLINOIS—Stephenson County, ss :
Lucros S. CowiIes ) v. f The Illinois Central/ Railroad Company. V
Before Joseph B. Smith, Esq,, Justice of the Peace of said County.
Take notice, that on Monday, the third day of February, a. n., 1862, at the hour of 10 o’clock a. m., of said day, before G-. P. MoCltmans, Esq., a Justice of the Peace, at his office in Sandoval, Illinois, we shall take the deposition of D. H. Stead, a witness to he examined on the part of said plaintiff, and which said deposition will be read in evidence at the trial of said cause, and when and where you may appear and cross-examine said witness, if you see proper.
This was the caption of the deposition:
Lucius S. Cowles v. Illinois Central Rail road Company.
Deposition of D. W. Stead, a resident of Marion county, State of Illinois, aged about 30 years, a witness on the part of the plaintiff in the above entitled suit, now pending before Joseph B. Smith, Justice of the Peace, in and for the county of Stephenson, and State of Illinois, aforesaid, produced, sworn, and examined before George P. McOlimans, a Justice of the Peace in and for said county of Marion, on the 3d day of February, a. d. 1862, at the office of said Justice, in the town of Sandoval, taken by virtue of the annexed notice.
The following is the certificate of the magistrate before whom the deposition was taken:
STATE OE ILLINOIS, ) marión county. j
s"
„ ^ 1, the subscriber, a Justice oí the Peace in and for said county, do certify that the above deposition was taken at the time and place mentioned in the caption thereof; that the said witness was first duly sworn ; that the said deposition was first carefully read to him and signed by him.
Dated this 3d day of February, a. d. 1862.
G. P. MoOlimans, J. P.
*119The court below overruled the motion to suppress the deposition, and the defendants excepted.
The cause was then submitted to the court for trial, without the intervention of a jury.
It appeared from the evidence that a box of goods marked L. S. Cowles, Freeport, Illinois, belonging to the plaintiff, and among them the goods in controversy, was shipped on the Ohio & Mississippi Eailroad, at Cincinnati. At Sandoval the box was delivered by the Ohio & Mississippi Eailroad Company to the receiving agent of the defendants, who receipted for it to that company as being in good order.
The box was delivered by the defendants in apparent good order, to the plaintiff, at Freeport, but upon opening it the goods in question, of the value of $75.66, were missing.
The finding below was for the plaintiff. A motion for a new trial was overruled, and a judgment entered in pursuance of the finding. The company thereupon took this appeal, and by their assignment of errors, insist that the deposition of Stead should have been suppressed for the reason assigned in the court below, and that upon the evidence the fiufiiug should have been for the defendants.
Messrs. Glover, Cook & Campbell, for the appellants,
contended that the suit should have been against the Ohio & Mississippi Eailroad Company, and cited 8 Meeson & Welsby, 426; Crouch v. The London amd North- Western Railway Co., 25 Eng. Law & Eq. E. 287; Watson v. The Ambergate, Nottingham and Boston Railway Co., 3 Eng. L. & Eq. E. 497; Ills. Cent. R. R. Co. v. Copeland, 24 Ill. 336.
2. It is not sufiicient to give evidence of a loss which is equally consistent with a loss by the Ohio & Mississippi Co. as by the defendant. Pierce American R. R. Law, 467; Midland Railroad Co. v. Bromley, 33 Eng. L. & Eq. 235.
Mr. Fredrick C. Ingalls, for the appellee.
*120The suit was well brought against the defendants below, although they receipted at Sandoval to the Ohio and Mississippi ¡Railroad Company and not to the plaintiff.
Where one person enters into a simple contract with another, for the benefit of a third person, the third person may maintain ah action for a breach of such contract. Brown v. Strait, 19 Ill. 89; Eddy v. Roberts, 17 Ill. 505.
“We consider it now well settled, as a general rule, that in case of simple contracts, the person for whose benefit the promise is made, may maintain an action in his own name upon it, although the consideration does not move from him.” Bristow v. Lane, 21 Ill. 198; Delaware & H. Canal Co. v. Westchester Co. Bank, 4 Denio, 97.
In delivering the box to the defendants, the Ohio and Mississippi ¡Railroad Company acted as the agent of the owner. New Jersey Steam Ham. Co. v. Merchants’ Bank, 6 How. U. S. Rep. 344; 4 T. R. 490; see also, Sims v. Bond, 5 Barn. & Adol. 393; Higgins v. Senior, 8 Mees. & Wels. 834, 844; Beebee v. Robert, 12 Wend. 413; Taintor v. Pendergast, 3 Hill, 72; and Sanderson v. Lamberton, 6 Binney, 129.
2. In the case (33 Eng. L. & E., p. 235) cited by appellants, it is held that the first company is not liable, because there was no proof of non-delivery, and (p. 238) the plaintiff had sued the 'second carrier, but failed to show any delivery of the package to them. Here, a delivery is clearly shown to appellants, of the box, in good order. It is all the plaintiff can possibly prove or be required to prove.