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Beers & Co. v. Gurney,

this point was not decided in the case cited, and Taft, Judge, in the opinion, says, that "the language of the opinion of the court would seem to go upon the hypothesis that the essential thing under the statute was to show that the firm was actually doing business in the state of Ohio. I think that if it appears that the firm was actually doing business in the state, it is to be assumed that it was formed for that purpose, and I cannot regard it as a defense that a firm actually doing business here was intended to do business somewhere else.”

In this case, we do not feel called upon to either approve or disaprove of this holding, but remark that if this rule was applied to the case in hand, the judgment must be reversed, because it fairly appears from the record that this firm was actually doing business in Lorain county, Ohio, and the suit grows out of the business transaction carried on by the firm with the defendant in Lorain county, Ohio; and it does not affirmatively appear in the record that the firm was not formed for the purpose of carrying on business in Ohio, nor that it was formed for the purpose of carrying on business anywhere else, nor that in fact, ever transacted any

business outside of the state of Ohio. It is claimed that the bill of exceptions shows that the headquar.ers of the firm are in Chicago, Illinois. The statement of the witness, Beers, in his deposition, upon which this claim is based, is somewhat equivocal ; it may relate to his own residence as well as to the place of business of the firm; but we base our decision upon the ground that this objection to the suit being brought in the firm name was not raised during the pendency of the cause in the justice's court, and was therefore waived in that court.

We do not pretend to say just how this objection to the capacity of the plaintiff to sue must be raised before the justice of the peace in order to prevent the application of the doctrine of waiver; but where we find, as in this case, that the right of the plaintiffs to recover a judgment has been vigorously contested upon two trials and upon several hearings without this question having been raised or suggested, we think that it ought to be deemed waived.

The defendant asked that the plaintiff might be required to give security for costs, and that in default thereof, the case might be dismissed. Security for costs was ordered and given. Afterward, on motion of the defendant, additional security was required and given.

There is one motion interposed by defendant to dismiss the cause in wnich no ground is stated. It does not appear anywhere in the record that any objection whatever was raised to the suit being instituted and carried forward in the firm name, and no effort was made upon the trial to show that the plaintiff firm was not authorized to maintain this suit in Ohio, in its firm name. If the question had been presented, it may be that the plaintiff might have shown beyond question its right to thus Siie. Its right to sue in this way may have been known to and recognized by the defendant. It may have been clear; at all events it is unquestioned. But even if it might have been successfully disputed it is not a question that goes to the jurisdiction of the court over a party, or over the subject matter. It is an objection that may be waived.

We do not undertake to hold that this question may not be raised hereafter in any subsequent proceeding that may be had in this case in the courts below. We express no opinion upon that subject. We simply hold that it was too late for the defendant in error to raise this question when the cause was pending on error in the common pleas

Hamilton Circuit Court.

court; and if it may still be interposed when the cause comes up to be heard upon its own merits, it should be done in such a way as to distinctly raise the question and afford the plaintiff an opportunity to be heard, or present its proots upon it.

The absence of affirmative allegations, or proofs in support of its right to sue in the firm name, where no objection had been interposed to its suing in this way, is not sufficient to justify a judgment against the plaintiff.

The judgment of the court of common pleas is reversed, and the case will be remanded to that court, with directions to reverse the judgment of the justice of the peace and set aside the verdict, and to set the case down for trial or other proceedings according to law, in the court of common pleas. The costs of the proceedings in this court are adjudged against the defendant in error.

D. H. Young and Sherman Culp, for plaintiffs.
Wm. G. Burwell and G. R. Craig, for defendant.

STREET ASSESSMENTS.

[Hamilton Circuit Court, March, 1897.]

Cox, Swing and Smith, JJ.
JOHN S. THOMPKINS ET AL. V. VILLAGE OF NORWOOD.
ASSESSMENT OF A TRIANGULAR CORNER LOT.

The street assessment on a triangular corner lot should not exceed its greatest

breadthwise frontage, which in this case is the base or rear line.
HEARD ON APPEAL from the Hamilton Common Pleas Court.

SMITH, J.

We think that the rule adopted by Judge Buchwalter in his decision of this case, reported in 1 Dec., 51, is as equitable a one as can be adopted, and so far as we can see is more nearly in accordance with the provisions of the statutes, as construed by the Supreme Court, than any suggested by counsel. The same kind of a decree as was entered in the common pleas may be entered in this court.

Edward Moulinier, for plaintiff.
William E. Bunity, for the village.

Southern Express Co. v. Oskamp, Nolting & Co.

COMMON CARRIERS.

[Ross Circuit Court, May Term, 1897.]

Cherrington, Russell, and Sibley. JJ. *THE SOUTHERN EXPRESS Co. v. OSKAMP, NOLTING & Co. L CONTRACT OF COMMON CARRIER.

The contract of a common carrier is not that he will ascertain the owner of

goods, and deliver them to him, but that he will deliver the goods according to directions; that is, at the place of destination, and to the party designated

to receive them or to his order. 2. DELIVERY OF GOODS BY A COMMON CARRIER.

Where two men of like rame live in the same town, and one orders goods from

a distant dealer, who ships them in the common name, simply; in the absence of notice to the contrary, the party giving the order is, in contemplation of law, the one to whom they are sent. Consequently, delivery to him will be a due execution in that particular of the contract of carriage, although the consignor believed the order was from, and intended the goods to go to, the other man. The result is not varied by the circumstance that the purchaser fraudulently assumed the name used in buying, provided it is that by which he was known at the place of destination, unless negligence be shown; and this, the mere fact that delivery was not refused by the carrier, until inquiry could be made of the shipper as to which party the goods were designed for, fails to establish.

Tl.is was an action by Oskamp, Nolting & Co. against the Southern Express Co., in the Ross county common pleas, to recover $562.50, the value of diamond ear-rings and pins, which they allege the Express Co. received from them March 15, 1895, and was in possession of at Hopkinsville, Kentucky, as a common carrier for hire, for the purpose of delivering to one T. M. Jones, in that place, and which at that date, they aver, it wrongfully converted to its own use "by delivering the same to parties unknown" to said O. N. & Co., “and who were not the parties to whom the goods were directed and shipped.”

Upon issues made as to this alleged conversion, the case was submitted to the court for trial, the finding and judgment being for the plaintiffs. The defendant filed its motion for a new trial, on the ground that the finding was not sustained by the evidence, which was overruled, exceptions duly taken, and the cause brought into this court by a petition in error. There were special findings of law, and fact in the common pleas. A bill of exceptions is also in the record, containing all the evidence, from which it appears that the essential facts are not in dispute. Concisely stated, they are as follows: In the town of Hopkinsville, Ky., lives a man named T. M. Jones. At the time of the transactions in question he was in the "general merchandise business.” Oskamp, Nolting & Co. are dealers in jewelry, at Cincinnati, O. About March 13, 1895, one Abe Rothchilds, on his way to Hopkinsville, wrote and mailed to O., N. & Co., an order, in these words: “Hopkinsville, Ky., 3-13, 95. Mess. Oskamp, Nolting & Co., Cin., O., Gents: I have an order for a pair of diamond earrings, solitaires, each stone to weigh about 1 1-2 carats, to be white, well cut and perfect. Please send by express on memorandum several pairs and will return promptly those not wanted. I presume the mercantile agencies will be able to inform you as to my responsibility. You may also send a ladies' brooch or lace

*This case was dismissed by the Supreme Court for failure to file printed record, February 1, 1898.5 Legal News, 127.

Dec. 27

Ross Circuit Court.

pin, something neat, not to cost over $40. Yours respectfully, T. M. Jones. I would like to make 10 per cent. margin on the above if possible.” This was written on a plain sheet, without any business card or heading such as is common with dealers. Upon receipt of the letter, O., N. & Co. looked into a commercial agency's book, found the name and business of T. N. Jones, the merchant at Hopkinsville, Ky., that he was rated at worth $20,000, credit good, and without further inquiry, shipped the goods it called for, under the mistaken belief that the order they were filling had been given by him. Mr. Jones was a stranger to them, with whom they had had no previous dealings. The goods were of the kind and value alleged, but, aside, from the fact that the package containing them was received by the Express Co. from a firm known to it as dealers in jewelry, no knowledge of their character or value was given to or had by it. The package was shipped as ordinary freight, at a cost of 25 cents for the carriage, the lowest rate at which the Express Co. takes the least valuable article. Had the true value of the consignment been known to the Express Co., the mode of carriage would have been different, to insure greater safety, and the cost of transportation materially larger. R. reached Hopkinsville, stopping at a hotel there, March 13th, the day the order for the diamonds was sent; and he remained in the town until afternoon of the 15th, going while there by the name of T. M. Jones. The merchant, Jones, met him, and he spoke of their having the same name, and of his purpose to go into the jewelry business in that place. The letters of the two got mixed in delivery at the P. O., and Mr. Jones took several, and also a telegram, wrongly given him, to R. The latter went so far as to get a room, and put a card on the door, visible to passers by, saying the room would be "occupied by Tobias M. Jones as a jewelry store about March 25th.” He also presented himself at the Express Co.'s office as T. M. Jones, and showed the agent letters in his possession so addressed. He asked further for a package there, sent in that name, and to identify himself as the person to whom it was forwarded, described what it should contain so fully, that upon opening it the agent was convinced of his right to receive the package, and delivered it to him. R. further stated to the express agent that he was looking for goods from various parties, of whom he gave a list, naming this Cincinnati firm as one. Before the package, he identified, was delivered to him, it had been offered to the merchant, Jones, who refused to take it, saying it was not his. The facts as to letters wrongly got by the latter, which were given over to R. were stated by Jones to the delivery man-all of which the express agent learned before he delivered the package in question. At the time he got it, also R. told him of renting a room, and showed the keys to it. The express agent testifies that he made the delivery to R. because he had left a list with him with Oskamp, Nolting & Co.'s name on it, and said that he had goods ordered from them, and T. M. Jones, the dry goods merchant, had refused a package for this T. M. Jones, and the latter was at hand to receive the goods he said he had ordered from O., N. & Co., on the arrival of the express. It further appears that 0., N. & Co. knew nothing of R.'s having made the order filled by them, and they delivered the package to the Express Co., intending it for T. M. Jones, the merchant. It was addressed thus: “T. M. Jones, Hopkinsville, Ky.” No mark beyond this was on it, or direction given by the shippers, indicating that it should go to the merchant rather than some other T. M. Jones, who might be at that place. R., when he demanded and got the package, showed no letter from O., N. & Co., relating

Southern Express Co. v. Oskamp, Nolting & Co.

to it, or bill of lading for the goods; nor did the agent of the Express Co. attempt to communicate with them before the delivery was made SIBLEY, J.

The facts stated, are the basis for two points of contention. The first is, that the delivery of these goods to a person not intended by the consignors, was per se a conversion, notwithstanding he had ordered them, and at the place of destination went by the name in which they were shipped. But if this consequence be held not to follow simply from thus delivering the goods, the second proposition is that such negligence is shown to have accompanied the act as in law to work the same result, and so make the Express Co. liable for their value.

I. “Common carriers deliver property at their peril, and must take care that it is delivered to the right person, for if the delivery be to the wrong person, either by an innocent mistake, or through the fraud of third persons, as upon a forged order, they will be responsible, and the wrongful delivery will be treated as a conversion.” McEntee v. N. J. S. Co., 45 N. Y., 37.

In determining, however, who is the right person, in case of an alleged wrongful delivery, it is to be borne in mind that the contract of the carrier is not that he will ascertain who is the owner of the goods and deliver them to him, but that he will deliver the goods according to directions. If a man sells goods to A., and by mistake directs them to B., the carrier's duty is performed if he delivers them to B., although the unexpressed intention of the forwarder was that they should be delivered to A.” Samuel v. Cheney, 135 Mass., 281. The doctrine so stated is also asserted by the supreme court of the United States, in different words, but with equal explicitness. "The undertaking of the carrier to transport goods necessarily includes the duty of delivering them. They are to be delivered at the place of destination to the party designated to receive them if he presents himself, or can with reasonable efforts be found, or to his order.North P. R. R. v. Com. Bank, 123 U. S., 734.

The principles thus brought into view are in ordinary cases decisive, and in a vital feature show the ground for a decision of the controversies arising upon this record. The single question left open is in respect to their application where, as here, the directions for delivering goods, or designation of the party to receive them, describes either o two persons, one of whom gave the order for and got the goods, while the consignors mistakenly supposed they were selling and shipping them to the other.

Disregarding the other circumstances, a right of recovery in this action is first predicated upon the proposition that the intention of the shippers is the controlling fact, and hence a delivery in contravention of it, was a conversion of the goods by the Express Co. For this contention Cundy v. Lindsey, 3 App. Ca., 465, is cited. But the case is not in point except upon the assumption that, in order to exempt tbe Express Co. from liability, the delivery must have passed the title to Rothchilds. It was not a controversy of the shipper with the carrier, but between him and a party that bought the goods of an imposter who got possession of them under circumstances very like those here involved, and the House of Lords ruled that as it was never the intention of the consignors to sell or send them to the imposter, the title did not pass. Consequently the purchasers were held in trover for their value. That is not the question for decision here, however, “because," says a court of great authority, commenting on Cundy v. Lindsey, supra, in a case before

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