412
FEDERAL REPORTER.
hence has properly substituted himself a debtor in place of an agent. The case of Levi v. Bank, 5 Dill. 104, decides, in effect, that the holder of paper who delivers it to a banker "for collection and credit" is at liberty to treat the banker as an agent \lntH the proceeds are collected by the banker in money, and that the authority of the latter to credit the customer does not arise until he has actmilly received the money. If that adjudication should be followed in the present case it would be decisive against the contention of the defendant, inasmuch as the Fidelity Bank has never received the proceeds of the draft in money. But it .is not necessary, for present purposes to adopt the views of the learned judge, expressed in the opinion in that case. Up to the time when the receiver took possession of its assets, the Fidelity Bank had neither credited the proceeds of the draft. to the plaintiff nor notified the plaintiff that the draft had been collected. It had not elected to terminate its .character as an agent and assume that of a debtor to the plaintiff when it suspended business.. It could not do this when in articulo mortis, and thus divest the plaintiff of title to the proceeds of thedtaft, without disloyalty and injury to its principal.· The ordinary relation of banker and customer was then at an end,.and the implied contract founded on that relation did not extend to the new situation. The defendant's position is no better than the position of the Fidelity Bank. It cannot withhold the proceeds of the draft from the'plaintiff because it has any title of its own, or any right as against the plaintiff to apply them upon the indebtedness of the Fidelity Bank. Its defense rests solely on the right of the Fidelity Bank to retain the proceeds as the property of that bank. If it had remitted the proceeds to the. Fidelity Bank, instead of crediting them to that bank, it would bave fulfilled its Whole duty towards the plaintiff as the owner of the draft. Judgment is ordered for plaintiff.
JACOBS ".TuTT
et ale Januarv 10:1888.) O.
(OWe'Ult. Court,
w: D. Mi88owri, w: D.
AGENT. Where, in ailll.ction against aranroad company to recover the value of & trunk and contel).ts, which were stolen from the company, it was shown that it was the trunk of a Jewelry salesman, containing his stock in trade; that the agent who checked It knew of the fact; and that plaintiff made no effort at concealment: held, the company was liable as for loss of ordinary baggage: .. SAME,.-LIABILITY FOR Loss OF BAGGAGE-DUTY TO CLAIM. In an action. by owner against a railroad company for the value of & trunk and its contents, alleged to have been stolen while in the company's and his possession, it was shown that he arrived at his was received at the same time, it being the afternoon of oI1e day, and.he did Dot call for it until between 9 and 10 o'clock next day. Hetd not claimeli within a reasonable 'time.
JACOBS V. TUTT.
413
a.
SAME-LIABILITY FOR Loss OF BAGGAGE-TIME OF Loss.
Where it appeared, on the trial of an action for the value of baggage stolen from a railroad company. that the business of the station often required as much as two hours from the time of arrival until the delivery of baggage, and that the baggage in question was stolen during that time: held, the company wasHable. Where a railroad company delivers all of its baggage to a Union Depot Company, to be cared for and delivered to passengers on presentation of checks, it makes such depot company its agent for such purpose, and is liable as a common carrier for loss of such baggage while in the Depot Company's custody that occurs before a reasonable time for delivery has elapsed.
t. SAME-LIABILITY FOR LOBB OF BAGGAGE-UNION DEPOT COMPANY.
Intervening Petition. On submission. This is an action by Ferdinand Jacobs, plaintiff, against Tutt & Humphreys, receivers of the Wabash Railroad, defendants, to recover the value of a. trunk and contents, alleged to have been stolen while in defendants' hands. Fenlon, Ringolsky <fc Block, for plaintiff. Priest and John W. Henry, for defendants. THAYER, J. The facts as found by the court, and upon which the decision in this case depends, are as follows: Plaintiff is a traveling dealer in jewelry, and makes a practice of carrying his entire stock in trade about the country in a trunk especially adapted for that purpose. On October 23, 1886, he took passage on board one of the defendants' trains at Wakenda, Missouri, for Kansas City, at which latter place he arrived about 8:30 P. M. of the same day. While at the station at Wakenda, plaintiff proposed to sell the station agent a watch and chain, and with that view he opened his trunk in one of the rooms of the station-house, and took out two watches and a large bunch of watch chains. The station agent, after some conversation, declined to buy; but a boy in his employ purchased a watch in his presence and borrowed money of him to pay for the same. The station agent himself furthermore promised to buy a watch from the plaintiff on his next trip. 'After this occurrence, he checked plaintiff's trunk from which the watches and chains had been taken, to Kansas City, Missouri, without inquiry, and as ordinary baggage. Plaintiff came through on the same train with his trunk. In view of all the circumstances, there can be no reasonable doubt that defendants' agent at Wakenda understood that the plaintiff was a dealer in jewelry, and that he carried more or less of his stock in trade in the trunk in question. On the arrival of the train at Kansas City, plaintiff went to his hotel, (the same being in the Union depot building at the station,) and did not call for his baggage until between 9 and 10 o'clock A. M. of the following day,-Sunday, October 24, 1886. In the mean time the trunk and contents were stolen from the custody of the Union Depot Company, and plaintiff never recovered but a portion of the contents, of the value of about $236. From various circumstances proven on the trial I infer and find that the trunk in question was stolen within less than two hours after its arrival,very likely not much later than 9 P. :M., October 23, 1886.
414
The Union Depot Company beforeallllded to appears to be, and·! find it to have beell,' in the busineSs of fu,rnishing de'pot facilities for, ra,i1roads(the defen4ants' road inc.l'uq.ed) whose trains enter Kansas City. None of said roads maintained depots at Kan'sas City, or baggage or waiting roor;ns. Such facilities ar? furnished by the depot company. The latter company receives' all baggage from defendants' baggage cars, removes the same from the platform to its baggllg'e-roomi,and delivers the same out of that room: to passengers on presentation ofch.eoks. It also receivtls baggage intended for outgoing' trains over the various railroads that use its depot, and gives checks for the the same on boar<l of baggage cars. same over such roads, and All of defendants' passenger trains arrive and depart fl'()ID the platform of said Union depot. That is the terminal point of the route for which fare is paid. On the evening of October 23, 1886, ,at about the' hour when plaintiff arrived at Kansas City a number of trains arrived aud departed from the depot in vario\1sdirections. The arrival and departure of such trains ordinarily led to an accumulation ofbaggage at that hour, and occasioned more or less delay in the delivery of baggage received from incoming trains. Frequently it seems that as much as two hours in the ordielapsed before ,the depot company could conveniently, nary course of business, deliver b!lggage that had been received. Upon the foregoing finding of faGts, my conclusions upon the various points of law that have been discussed are as follows: First. That the dt-fendants'station agent at Wakenda having checked the trunk in ques.tion as baggage, with knowledge that it contained jewelry, and without any concelj,]ment practiced by the plaintiff as to the contents of said trunk or the value of the same,the plaintiff is not estopped from demanding full co!llpensntion for the trunk and its contents,asthough the contents were in fact ordinary baggage, and not merchandise. Railroad 0'0. v· .Pralojf, 100 U. S. 27, 28. Second. That the plaintiff did not demand his tnmk within a reasonable time after its arrival in Kansas City. He should have demanded it on the evening of his arrival, ,Roth,v. Railroad '00., 34 Y. 548; Jones v. 1ranBporlation 00.,50 Barb. 193; Railroad v. Mahan,8 Bush, 184; Burnell v ·. Railroad, 45 N. y. 184; Hutch. Carr. §§ 707-715.. Third. I conclude that, under the circumstances of this case, (it not being customary to deliver baggnge from the platform in. Kansas City imme4iately on the arrival of trains,) that plaintiff might lawfully postpone claiming his baggage until such hour as the depot company .was prepared to delive.r baggage, (say for a space of time not exceeding two hours,) and that in the mean time the liability , as.& common carrier and insurer against loss would continue. Fourth. I conclude that plaintiff's baggage was in point of fact stolen within less than two hours aft,er its arrival, and before the lapse of a reasonable time for,claiming the same, and that by reason of such fact plaintiff is not precluded from charging the defendants as insurers for the .loss of the .. Fifth· I conclude that the Union Depot Company, on the facts at least in taking baggage from disclosed, was the agent of th.e removing the same to its baggage-rooll1, there delivering their
LAFLIN, 11. CHICAGO, W. &: N. R. co.
the same to passengers; and that the defendants are a.ccordingly liable in thilil case. Ji.n v. RaiJ,rQad, 10 Mo. App. 132-134. Whether the defendants would be liable for baggage brought over their road and lost out of the baggage-room of the Union Depot Company after the lapse of a reasonable time for delivery, and after defendants' liability as insurers hllod expired, or whether the Union Depot Company would in that event alone be Uable for such loss, as warehouseman, and on the ground of negligence only, it is unnecessary in this case to determine. I will enter an order directing the receivers to pay plaintiff the value of the trunk and contents at the ,tb;ne of the loss, less the value of thejewe]ry that was recovered and returned to him. The testimony as to the value of the contents of the trunk is not wholly satisfactory. Hence I will order an inquiry before one of the standing masters in chancery, as to the value of such contents, and to that end will order the plaintiff to make out an inventory as neara,S he can from any papers, books, or accounts in his Of the contents of the trunk, showing the kind of jewelry it contained and' quantity and value as near as may be, and requiring him to 'appear before the master with such inventory and vouchers, on some day to be designated by the master, and submit to an examination under oath relative to the same. The receivers will pay BUch sumas is reported by the master to be the value of the trunk, such payment to be made when the report has been confirmed.
LAFLIN ". CHICAGO,
W. & N. R. Co.
(Gwcuit Gour', B. D. Wwcon,in. December 10,1887.)
L EHIlOlKT DOMAm--OOHPENUTlON-DAlIAGB :BILl'l'Y '"OR
In. an action (or damages to land. caused by the coustruction of a railroad, the plaintiff is entitled to recover the then fair market value of the part taken, -and the amount of the damage to the residue by sueh taking, to be estimated by considering the value ·of .the land for the purposes for which it was used when t.aken., or its adaptability to particular uses, having refer· ence'to the existing Wants or bnsiness of the' community, or such as might then have been reasonably expected in the near future.
FuTUlUt:USB.
TO PART
.
I.
8.um--COMPE1iSATION-HoTBL PROPERTY-DRIVES-ANNOYANCB.
,Inau action foJ' damages by t4e construction of a rll,ilroad across a tract of land, the plaintiff cannot recover for injury to drives .about the premises, the annoyance or danger of ftre·ftom passing trains, loss of patronage to · cost of a,retaining wall li.1ong the track, or for imhotel ()n such land, prope.r or negligent of·tJ!.e road. In an'action for damages resulting from the construction of a railroad across plaintiff's hotel property, evid.ence that the construction of the. road will dithe business of the hotelis admissible only the jury in determining $ll weight of direct testimony of depreciated value.. . CO:InrBRRED AS ABATEXBNT.
·
8Al1B-COHPENSATlON-HoTBL PR()PERTY-DIMINUTION Oll' BUSINESS.
.,
In an action for damages to land in Wisconsin,resulting from the coustruction ofa railroad, the fact that the,road is a trunk line to Chicago is not such a benefit to plaintiff as will be. considered in abatement of the damages sU1fered by him. . ' . .. . ·
