1860.

COXON

v.

GREAT WESTERN RAILWAY CO.

The contract on the back of the ticket (so far as material) was as follows:

"TERMS OF THE CONTRACT.

"The Shrewsbury and Hereford Railway Company undertake the receiving, forwarding and delivering upon their line, of horses, calves, sheep and pigs upon the terms and conditions hereinafter stated and upon no other; and by such only will they be bound."

"4th. For the convenience of the owner, the Company will receive the charges payable to other Companies for conveyance of such cattle over their lines of railway; but the Company will not be subject to liability for any loss, delay, default, or damage arising on such other railway.”

The cattle were placed in two trucks belonging to the Great Western Railway Company, and on the arrival of the train at Wolverhampton, it was found that the bottom of one of the trucks was broken, and that one of the oxen was dead with its legs through the hole, and the others more or less injured. The plaintiff went to Birmingham and saw the superintendent of the Great Western Railway, who advised that the animals should be removed as soon as possible; and on a subsequent occasion the superintendent said, that if the invoice did not protect the Company they must make the plaintiff such compensation as he was entitled to: he also said that the Company would do justice to the plaintiff, and endeavour to effect a settlement of his claim."

It was submitted on behalf of the defendants that the contract was made with the Shrewsbury and Hereford Railway Company, and not with the Great Western Railway Company.

The learned Judge was of that opinion and nonsuited the plaintiff, reserving leave to him to move to enter a verdict

for 417, the Court to have power to amend the declaration, if necessary.

Mellor, in last Michaelmas Term, obtained a rule nisi accordingly, against which

Hayes, Serjt., and Field now shewed cause.-There was but one contract for the carriage of the cattle the entire distance from the Craven Arms Station to Birmingham, and that contract was made with the Shrewsbury and Hereford Railway Company, subject to certain conditions. It is true that a gross sum was charged for the whole journey, but by the 4th condition, the Company state that for the convenience of the owners, they will receive the charges payable to other Companies for conveyance of cattle over their lines of railway; but they will not be liable for any damage arising on such railways. [Martin, B.—The case is not distinguishable from The Bristol and Exeter Railway Company v. Collins (a) and Mytton v. The Midland Railway Company (b).]

The Court then called on

Mellor and Brewer to support the rule.-There was evidence of a contract with the Great Western Railway Company to carry the cattle from Shrewsbury to Birmingham. That contract was made by the Shrewsbury and Hereford Railway Company as the agents of the Great Western Railway Company. In cases of this kind there are two contracts; first, a contract by the Company who receive the goods to carry them on their line of railway; secondly, a contract by that Company as the agents of the Company who own the adjoining line. The terms of this contract are materially different from the condition relied on in (a) 7 H. L. Cas. 194. (b) 4 H. & N. 615.

1860.

COXON

v.

GREAT WESTERN RAILWAY Co.

1860.

COXON

v.

GREAT WESTERN RAILWAY Co.

EXCHEQUER REPORTS.

Collins v. The Bristol and Exeter Railway Company (a). [Bramwell, B.-The declaration alleges that the cattle were delivered to the defendants at the Craven Arms Station of the Shrewsbury and Hereford Railway to be carried by the defendants from that station to Birmingham. That is traversed by the plea then is it true or not?] The carriage was the property of the Great Western Railway Company, and the conduct of the superintendent at Birmingham was evidence that the Great Western Railway Company considered themselves liable. At all events there was a contract with the defendants at Shrewsbury; and if the declaration were amended by alleging that the cattle were delivered to the defendants at Shrewsbury to be carried to Birmingham, it would be supported by the evidence.

MARTIN, B.—I am of opinion that the rule ought to be discharged. The declaration states that the plaintiff caused to be delivered to the defendants, at the Craven Arms Station of the Shrewsbury and Hereford Railway, some oxen of the plaintiff, to be carried by the defendants from the said station to Birmingham and there delivered for the plaintiff. That allegation is traversed, and at the trial it was distinctly disproved. Instead of proving a contract with the Great Western Railway Company, the plaintiff proved a contract with the Shrewsbury and Hereford Railway Company. But then it is argued that there was evidence to go to the jury of a contract with the Great Western Railway Company. I am of opinion that there was none. The fact that the superintendent at Birmingham communicated with the plaintiff is not entitled to much weight, because although he was the servant of the Great Western Railway Company, no doubt the two Companies had some arrangement between themselves by which he would act at (a) 11 Exch. 790.

the end of the journey on behalf of the Shrewsbury and Hereford Railway Company, instead of a person coming from the Craven Arms Station or from Shrewsbury. Therefore I do not think that there is anything in that circumstance to shew an alteration of the contract. Then it is said that we ought to amend the declaration by stating that the plaintiff caused the oxen to be delivered to the defendants at Shrewsbury, to be from thence carried by them to Birmingham. But that would only make a difference in the form of the declaration, for there is no evidence of a contract with the Great Western Railway Company to carry from Shrewsbury to Birmingham. There was one entire contract, not two contracts; therefore if we alter the declaration it would not be proved. The only way in which a plaintiff can succeed in cases of this kind, is by establishing that these Companies are partners in the transaction (as was suggested in Mytton v. The Midland Railway Company (a)), in which case he would have a right to sue any one of them. I do not see any distinction between Mytton v. The Midland Railway Company and the present case.

BRAMWELL, B.-I am entirely of the same opinion. The question is, what is the meaning of the contract. It seems to me that it was one contract between the plaintiff and the Shrewsbury and Hereford Railway Company; and that they undertook to carry the cattle from the Craven Arms Station to Birmingham. It is argued that they were to carry to the end of their line and then deliver the cattle to the Great Western Railway Company to carry to Birmingham. The case of Collins v. The Bristol and Exeter Railway Company does not say that such a contract is impossible, and therefore we have to consider whether that was the contract in this case. By the 4th condition the Shrewsbury (a) 4 H. & N. 615.

1860.

COXON

GREAT

WESTERN

RAILWAY CO.

1860.

Coxon

v.

GREAT WESTERN RAILWAY CO.

and Hereford Railway Company say that for the convenience of the owner, they will receive the charges payable to other Companies for conveyance of cattle over their lines of railway; "but they will not be subject to liability for any loss, delay, default or damage arising on such other railway." They do not say that they will not carry on another railway, but only that they will not be liable for damage arising on such railway. So that there is an absolute refusal of liability for damage, but not a refusal to carry. Then, is there in this case anything to qualify their contract, and create a contract between the plaintiff and the defendants? I think there is not; and that there was no contract between the plaintiff and defendants either to carry the entire distance from the Craven Arms Station and Birmingham, or the shorter distance from Shrewsbury to Birmingham.

CHANNELL, B.-I am also of opinion that the rule ought to be discharged. There was no evidence for the jury of a contract by the plaintiff with the defendants to carry the entire distance, and even if the declaration were amended, as suggested, there would be no evidence to support it.

Rule discharged.