The defendant in error was the plaintiff in the court below. He brought this action to recover damages from the railroad company for alleged breaches of a contract entered into by the parties on the 23d of September, 1873, for the transportation by the company of sixteen car-loads of cattle from East St. Louis to the city of Philadelphia. It was stipulated that McCarthy should have the entire care and charge of the cattle during the trip; that he should load and unload them; that the company should be deemed forwarders and not common carriers; and that it should be liable only for loss or injuries caused by its gross negligence. The cattle were shipped, accordingly, at East St. Louis, under the care of Hensley, an employ e of McCarthy. They were transported thence by the defendant's road to Cincinnati, thence by the Marietta and Cincinnati road to Parkersburg, in West Virginia, and thence by the Baltimore and Ohio road to Baltimore. There the performance of the contract terminated. The plaintiff gave evidence tending to prove the following state of facts: Between East St. Louis and Cincinnati there was unnecessary delay and serious injury to the cattle, arising from the gross negligence of the company's servants. At Cincinnati, Hensley sold forty of the cattle. This was done because, by reason of the injuries they had received, they were unfit for further transportation. Between Cincinnati and Parkersburg there was further unnecessary delay, arising from the same cause which produced it between East St. Louis and Cincinnati. The cattle arrived at the latter place five hours behind the proper time. Hensley insisted that they should be shipped for Baltimore on the morning of the next day, which was Sunday. The Baltimore company received but refused to forward them until Monday morning; and refused to ship them at all, until Hensley signed a new and onerous contract touching their transportation upon the Baltimore road. He at first refused; but, there being no other means of transportation east, he was constrained to submit, and signed under protest.
The defendant company gave evidence tending to contradict the plaintiff's evidence on all these points. It was expressly proved that the Baltimore company 'was not able to send the cattle out of Parkersburg on Sunday, because they had not the necessary cars therefor at the time, and that they were sent at the first opportunity, which was on Monday morning.'
The evidence as set forth in the bill of exceptions is wholly silent as to any other reason for not making the shipment on Sunday.
The testimony being closed, the company's counsel submitted sundry instructions, and prayed that they should be given to the jury. A part was given and a part refused. Proper exceptions were taken as to the latter. Finally, the court instructed the jury at large according to its own views.
There is no question presented in the record as to the sufficiency of the pleadings, or the admission or rejection of testimony. The exceptions and the assignments of error are confined to the instructions refused and to those given by the court sua sponte.
It has been repeatedly determined by this tribunal that no court is bound to give instructions in the forms and language in which they are asked. If those given sufficiently cover the case, and are correct, the judgment will not be disturbed, whatever those may have been which were refused.
We have examined the charge of the learned judge who tried the case below, and are entirely satisfied with it. It was full, clear, and unexceptionable. It submitted the case well and fairly to the jury, and was quite as favorable to the company as the company had a right to demand.
We have found no error in it.
There are a few points, and only a few, to which we deem it necessary particularly to advert:--
The suit was well brought by McCarthy. The only testimony as to the ownership of the cattle was given by him. He said, 'William Hensley, besides myself, was interested in the cattle. He had a half-interest in the profits. I was the owner.' If Hensley had been joined with McCarthy as a plaintiff, there must, upon this testimony, have been an amendment, by striking his name from the record, or the action must have failed. The facts called for no instruction, and the court properly refused to give any.
The contract with the defendant was for the transportation of the cattle the entire distance they were to go. It was stipulated that the company would forward 'sixteen cars, more or less, from East St. Louis to Philadelphia, at the rate of $130 per car, which is a reduced rate, made expressly in consideration of this agreement.' No other company was named, there was no mention of compensation to any other party, and nothing was said of a change to the cars of any other company on the way. Such corporations, unless forbidden by their charters, have the power to contract for shipments the entire distance over any connecting lines. Railroad Company v. Pratt (22 Wall. 123) is conclusive in this court upon the subject. The principle is so well settled in this country, that a further citation of authorities in support of it is unnecessary. Such is also the rule of the English law. Both here and there the company is liable in all respects upon the other lines as upon its own. In such cases, the public has a right to assume that the contracting company has made all the arrangements necessary to the fulfilment of the obligations it has assumed. The Great Western Railway Co. v. Blake, 7 H. & N. 986; Weed v. Railroad Company, 19 Wend. (N. Y.) 534; Knight v. Portland, Saco, & Portsmouth Railroad Co., 56 Me. 234. When a contract is not on its face necessarily beyond the scope of the power of the corporation by which it was made, it will, in the absence of proof to the contrary, be presumed to be valid. Corporations are presumed to contract within their powers. The doctrine of ultra vires, when invoked for or against a corporation, should not be allowed to prevail where it would defeat the ends of justice or work a legal wrong. Union Water Co. v. Murphy's Flat Fluming Co. et al., 22 Cal. 620; Morris Railroad Co. v. Railroad Company, 29 N. J. Eq. 542; Whitney Arms Co. v. Barlow et al., 63 N. Y. 62. There is no conflict in the evidence as to the terms of the contract. It is all one way, and leaves no room for doubt.
The contract contains some provisions in favor of the company, to which we have not adverted. They do not appear to have been challenged in the court below, and have not been here. They are, therefore, not before us for consideration, and we pass them by without remark.
It does not appear that Hensley had any authority to enter into the contract forced upon him at Parkersburg. The original contract included the Baltimore road. The Parkersburg contract could not, therefore, in any wise, affect his rights with respect to the defendant. The court instructed the jury properly on the subject. It must be laid out of view as an element in the case.
The question made by the company upon the Sunday law of West Virginia does not, in our view, arise in this case. We have already shown that the defendant proved upon the trial that it was impossible to forward the cattle on Sunday, for want of cars. And it is fairly to be presumed that no other reason was given for the refusal at that time. It does not appear that any thing was then said as to the illegality of such a shipment on the Sabbath. This point was an after-thought, suggested by the pressure and exigencies of the case.
Where a party gives a reason for his conduct and decision touching any thing involved in a controversy, he cannot, after litigation has begun, change his ground, and put his conduct upon another and a different consideration. He is not permitted thus to mend his hold. He is estopped from doing it by a settled principle of law. Gold v. Banks, 8 Wend. (N. Y.) 562; Holbrook v. White, 24 id. 169; Everett v. Saltus, 15 id. 474; Wright v. Reed, 3 Durnf. & E. 554; Duffy v. O'Donovan, 46 N. Y. 223; Winter v. Coit, 7 id. 288. The judge below committed no error in refusing to charge as requested upon this subject.
Judgment affirmed.
Notes edit
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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