66

This document never came to the plaintiffs' knowledge. On the 12th of December, Birkett, Sperling & Co. instructed the defendants to deliver the goods to Bowden, as has been already mentioned. Upon the document of the 13th of December the words charges only" were written at the top and across it, and it was intended by the defendants to be merely an account of the charges. At the foot of the document of the 13th of December, 1881, were the following words: "Notice, please sign the under mentioned order, without which the goods cannot be delivered by the Great Eastern Ry. Co. Please deliver the above mentioned goods to Coventry, Sheppard & Co., or bearer. Bowden & Co.' It was endorsed"Coventry, Sheppard & Co."

Pollock, B., was of opinion that the advice note amounted to an admission by the defendants that they held the grain at the disposal of the consignees, and that the plaintiffs were entitled to say that the documents must be taken as representing goods actually in the defendants' possession. He gave judgment for the plaintiffs for 1137., the case having been tried without a jury.

The defendants appealed.

Forbes, Q.C., and French for the defendants.

The alleged estoppel in the present case arises upon the supposed negligence of the defendants in improperly sending_out_the advice notes; but Carr v. London & Northwestern Ry. Co., Law Rep. 10 C. P. 307 is in point, and shows that the defendants have not been guilty of such negligence as to estop them from stating the truth. The defendants made no representation of fact, and therefore they are not liable to an action. Farmeloe v. Bain, 1 C. P. D. 445. The act of the defendants was not the proximate cause of the injury sustained by the plaintiffs, and the defendants did not neglect any duty owing either to the plaintiffs or to the general public. Arnold v. Cheque Bank, 1 C. P. D. 578. Mere carelessness in conducting their business would be insufficient to render the defendants liable. Dickson v. Reuter's Telegram Co., 3 C. P. D. 1. The defence to this action may be rested upon two grounds: first, the defendants did not intend that the advice notes and delivery orders should be acted upon; these documents are not negotiable instruments; they are not like bills of lading or iron warrants: Merchant Banking Co. v. Phoenix Bessemer Steel Co., 5 Ch. D. 205; secondly the defendants had no reason to suppose that any fraud would be perpetrated.

Finlay, Q. C., and Albert Gray for the plaintiffs.

By the defendants' negligence the plaintiffs were misled into advancing money to Bowden, for owing to the advice notes and delivery orders they were induced to rest satisfied and to abstain from making inquiries; and this is sufficient to render them liable. Knights v. Wiffen, Law Rep. 5 Q. B. 660. These advice notes are plainly documents upon which advances of money may be easily

obtained; the defendants ought to have contemplated that if they were guilty of negligence a dishonest use might be made of the

advice notes.

French, in reply. The doctrine as to estoppel is never to be applied without necessity, for "estoppels are odious," per Bramwell, L.J., in Baxendale v. Bennett, 3 Q. B. D. 525, at page 529, and here there is no reason for holding that an estoppel has been created against the defendants.

BRETT, M.R.-This judgment must be affirmed. It can be upheld only on the ground of estoppel, that is, that the defendants were prevented by their own conduct from relying upon the fact that there were not two parcels of goods. There was one parcel which the defendants were bound to deliver to Bowden & Co. On the 13th of December they sent to Bowden & Co. a document couched in a certain form, and stating that certain goods had arrived and were subject to their orders; and there was a memorandum-"Notice, please sign the under mentioned order, without which the goods cannot be delivered." If I had had to construe that document, I might have felt doubt whether the delivery was to be made to a servant or not; but I should not have felt much doubt. Now I have the means of ascertaining what is the truth by finding out how the company have dealt with the documents. As to the document of the 9th of December, Bowden & Co. endorsed it in blank, and handed it to Birkett, Sperling & Co., who gave notice to the defendants to hold the goods for them. This notice of course was not sent to persons who were mere carriers; the railway company undertook to hold the goods for Birkett, Sperling & Co. It was intended that there should be a delivery not to a mere servant, but to some person who should buy the grain for himself. Birkett, Sperling & Co. endorsed to the plaintiffs. The conduct of the defendants showed that they undertook to deliver to those persons, to whom the document should be handed over. As to the order of the 13th of December, the defendants acted similarly; they did not treat it merely as an invoice. The plaintiffs advanced money upon the faith of the document; they took the delivery order as a security upon which they might advance money; the second document was treated as an admission that the defendants were holding other goods; the plaintiffs advanced the money because the document was presented to them. The question is as to the second document. It is an undertaking. The question is whether the facts of this case are brought within any of the recognized doctrines as to estoppel. In Carr v. London & Northwestern Ry. Co., Law Rep. 10 C. P. 307, certain propositions were laid down as to estoppel: one of them, that as to negligence, will govern this case. Now, were the defendants guilty of culpable negligence? Might the plaintiffs reasonably suppose that the document,

upon which the defendants themselves had acted, had been correctly drawn up? It is true that there can be no negligence, unless there be a duty; but here the documents have a certain mercantile meaning attached to them, and therefore the defendants owed a duty to merchants and persons likely to deal with the docu

ments.

Then was the negligence of the defendants the "proximate" cause of the loss sustained by the plaintiffs? I use the expression "proximate cause as meaning the "direct and immediate cause." Here the production of the document was the "direct and immediate " cause of the advance of money to Bowden & Co. by the plaintiffs. And certainly the negligence of the defendants was to the prejudice of the plaintiffs, and allowed the fraud to be perpetrated upon them. It seems to me, therefore, that the defendants are estopped as against the plaintiffs, their negligence having been the immediate cause of the advance. I do not think that the acceptance of the delivery order is a ground of estoppel in this case, because at that time the money was already advanced. We are here judges both of law and of fact, and I am of opinion that the money was irrecoverably lost when it had been advanced to Bowden & Co. But the acceptance of the document is fatal to the defendants as showing that they elected to treat it as a delivery order; and it is the strongest piece of evidence that they so acted as to entitle persons to believe that they would deliver the wheat when the proper document should be presented to them. The documents issued by the company are not negotiable instruments, and do not pass the property; but the defendants are estopped from denying the plaintiffs' right to the sacks of grain claimed by them. The judgment was right, and the appeal must be dismissed.

LINDLEY, L.J.—I am of the same opinion. The plaintiffs did advance money on the faith of the document presented to them; it contained a statement as to the arrival of the goods and a form of order. It may be said that the document was only an intimation to men of business, and not a representation to be acted on; but the plaintiffs did not so understand it; as a matter of fact they were not negligent in not seeing that the document related to the same quantity of goods. It may be said that it is not proved that the documents were treated as delivery orders; but we must look at the facts, and it will be seen from them that the plaintiffs acted upon the documents presented to them. The form of the documents distinguishes this case from Carr v. London & Northwestern Ry. Co., Law Rep. 10 C. P. 307. The documents are of a different kind. Certain recognized propositions were laid down in Swan v. North British Australasian Co., 7 H. & N. 603; 2 H. & C. 175, and Carr v. London & Northwestern Ry. Co., Law Rep. 10 C. P. 307. The present case falls within these recognized

principles. The judgment was right, and the appeal must be dismissed.

FRY, L.J.—I am of the same opinion. I think that there was some evidence of a custom to sell or pledge goods upon the faith of a document of this kind. Then was there any duty upon the railway company to take care? I think that they were bound to take reasonable care. The documents which are material are those of the 9th and 13th of December. Now the dates are most important; they are different, and therefore the rules of the company would have a different application. There was nothing to show that the documents related to the same goods except the word "charges written across the second document; the second document requires a signature before the goods can be delivered, and it would be very strange if two signatures should be required for the same lot of goods. The documents were so different, that it could not reasonably be supposed that they related to the same lot of goods.

Then was the negligence of the defendants the proximate cause of the loss sustained by the plaintiffs? Here the second document was carelessly issued, and upon that the loss must be taken to have been sustained.

Appeal dismissed.

STATE ex rel. ATTORNEY GENERAL

v.

KANSAS CITY, ST. JOSEPH AND COUNCIL BLUFFS R. R. Co.

(77 Missouri Reports, 143.)

the

Under the charter of the Missouri Valley R. R. Co. and its successor, Kansas City, St. Joseph & Council Bluffs R. R. Co., and the acts amendatory thereof, the latter company is bound to maintain railroad connection between the cities of St. Joseph and Savannah and to run a train of cars daily between those points; but it is not bound to make Savannah a point on its main track, or to run all its trains to the old depot at that place. In maintaining a switch from this depot to the depot on the new line located and established under and by authority of the amendatory act of 1871, and running a train of cars daily over this switch to the old depot, the company sufficiently complies with the law.

Cases may arise where the applicant for relief has an undoubted legal right for which mandamus is the proper remedy, but where the court may, in the exercise of a wise judicial discretion, still refuse the relief.

The peremptory writ of mandamus must conform strictly to the alternative writ.

David Rea & Son and Pembroke Mercer for relator.

B. F. Stringfellow, and Strong & Mosman for respondent.

HENRY, J.—This is a proceeding by mandamus to compel the respondent to run all its passenger and freight trains, and at least one train of cars daily, back and forth, to its depot in the town of Savannah, and to maintain and keep the depot there, so as to accommodate the passengers and shippers who may desire to ship produce and merchandise or to take passage from said depot. The whole controversy turns upon the construction of several acts of the legislature in relation to this respondent and the railroad company to whose rights it succeeded.

By an act approved March 8th, 1867, the Missouri Valley R. R. Co. had authority to locate, construct, use, operate and enjoy a railroad from a point at or near the western terminus of the Pacific R. R. through . . . the towns of Weston and St. Joseph . . . to the southern line of the State of Iowa, and on and over the roads located by the Atchison & St. Joseph, the Weston & Atchison, and the Platte County R. R. companies., or either of them, with the privilege of changing the line of the Platte County R. R. so as to run from a point in the city of St. Joseph, along the valley of the Missouri river by way of Forest City to the Iowa line. . and of locating, constructing, using, operating and enjoying a branch road from the town of Savannah to the Iowa line, in the direction of Des Moines City. The act also contains the following: "Provided that nothing in this act shall be taken or construed to authorize said company, its successors or assigns, to change the general route, tear up, destroy or render unfit for ordinary railroad purposes that part of their railroad or any portion thereof, which extends from their connection in the city of St. Joseph with the road running south to Weston to their present terminus in the town of Savannah, but said road from St. Joseph to Savannah shall be kept in good running order, and at least one locomotive and train of cars shall be run daily back and forth over the same, accidents excepted, and Sundays at the discretion of the company; and in default thereof, all rights and privileges and franchises granted by this act are to be held as null, void, and of no effect." The Missouri Valley R. R. Co. took possession of said road and ran and operated the same from St. Joseph to said Savannah depot until the 11th of June, 1870, and during that time, constructed, as a part of its road, a road from said depot in a northern direction to the north line of the State of Missouri. In July, 1870, that company consolidated with the St. Joseph & Council Bluffs R. R. Co., and formed one company styled the Kansas City, St. Joseph & Council Bluffs R. R. Co. It is not denied that the latter company, the respondent herein, succeeded to the rights and assumed the obligations conferred and imposed by the act of 1867.

By an act of the general assembly approved February 8th, 1871, the respondent was authorized "to change the general route of that part of its railroad which extends from its connection in the