Mathews v The Dublin & Drogheda Railway Company

• Jurisdiction: Ireland
• Judgment Date: 21 November 1865
• Date: 21 November 1865
• Court: Exchequer (Ireland)

Exchequer.

Coram PIGOT. C.B., FITZGERALD and DEASY, BB.

MATHEWS

and

THE DUBLIN & DROGHEDA RAILWAY COMPANY.

Bolckow v. SeymourENR 17 C. B., N. S. 107.

Garnett v. WillanENR 5 B. & Ald. 53.

M'Manus v. The Lancashire and Yorkshire Railway Co.ENR 4 H. & N. 327.

Peek v. North Staffordshire Railway 10 H. of L. Cas. 473, 566.

Simons v. The Great Western Railway Co. 18 Com. B. 805.

Beal v. The South Devon Railway Co. 3 Hurl. & Colts. 337.

Harris v. RickettENR 4 H. & N. 1.

Rogers v. Hadley 2 H. & Colts. 227.

Walker v. The York and North Midland Railway Co.ENR 2 H. & N. 750.

Anderson v. The Chester and Holyhead Railway CompanyIR 4 Ir. Com. Law Rep. 435.

COMMON LAW REPORTS. 87 . years, and the entire management of his affairs was intrusted to E. T. 1865. him, and the debts and contracts entered into by him ought to be Exchequer. paid by the defendants. O'REILLY v. Appeal refused. No costs of the motion. RICHARDSON M. 1'. 1865. Nov. 11, 21. Tins was an action against the defendants as carriers of cattle. The delivery or risk note The first count charged a breach of the defendants' contract to of a Railway provide waggons for the plaintiff's cattle at a reasonable time before whose aslitYalion - masters were the starting of the train by which the defendants lied contracted empowered to to convey the cattle. Special damages-That "the plaintiff in- cattle book through from " tended to offer said cattle for sale in Huntingdon, on Saturday stations in Ire land to market " the 19th day of November 1864 ; and, by reason of the premises, towns in Eng land, contain " the plaintiff was unable to have the said cattle in Huntingdon ed a notice that " The " upon said day in time to offer the same for sale, and lost the Company will in no case be "sale thereof; and said cattle, by reason of the premises, were responsible for any damage to " detained upon their journey from Dublin to Huntingdon longer live stock aris- ing from over crowding any waggon, or for the delivery of cattle or live stock at any particular time, or for any particular market." Held, that such stipulation did not qualify the implied contract to deliver within a reasonable time, but only prevented the question of reasonable time from being affected by the express wish of the consignor to have his cattle delivered at a partiÂÂcular time, or for a particular market. The sailing bills of a Steam;packet Company, whose vessels formed a link in a through-booking system, contained a condition as follows :-" Cattle to be forwarded by this route are received, subject to this express stipulation, that if it shall be found, on the arrival of the cattle in Dublin, that there is not room for the conveyÂÂance of the cattle by the next ordinary vessel of the London and North Western Railway Company proceeding to Holyhead, the Company shall not be bound to forÂÂward the cattle until the sailing of the ordinary vessel next following that of the vessel in which there shall not be room for the cattle." Part of a contract to carry cattle was in writing, viz., the above sailing bill, part by parol. Held, that it was a question for the jury whether, upon the evidence, the conÂÂtract between the parties had been made subject to the above stipulation or not. Coram PICOT, C. B., FITZGERALD and DEASY, BB. 88 COMMON LAW REPORTS. " than, but for the aforesaid breaches of contract, they would have " been ; and were, by reason of the premises, not only bruised and " injured, but also became and were distempered and affected with " disease, and maimed, and rendered lame ; and the plaintiff not " only lost large profits which he would otherwise have made by " the sale thereof, but also was obliged to make, and did make, " divers journeys; and incurred expense and loss of time in enÂÂ" deavouring to cure and heal said cattle, and in bringing them " to divers places for sale ; and in finding, keeping, and curing "the same ; and was ultimately obliged to sell the same for a less " price than, but for the breaches of contract aforesaid, he could " and would have sold them." The second count was as follows:-" That defendants were " carriers of cattle from Kells in Ireland to Huntingdon in England, " by the route and in manner following-that is to say, from Kells " to Dublin by railway, thence to Holyhead by the steamer of a " line known as "Fhe London and North Western line,' and from " Holyhead to Huntingdon by railway ; and in consideration that " the plaintiff would deliver to the defendants, as such carriers, "being, to wit, thirty-nine head of cattle, to be carried by them, "by the route and manner aforesaid, from Kells to Huntingdon, " and at Huntingdon aforesaid to be delivered for the plaintiff, " defendants promised plaintiff to forward said cattle from Dublin " to Holyhead (being part of said journey from Kells to HunÂÂ" tingdon) by a certain steamer, which was advertised to sail from " the North-wall, Dublin, for Holyhead, at or about the hour of " ten o'clock in the evening of the 17th day of November 1864 ; " and the plaintiff delivered to the defendants, and the defendants " received and had from the plaintiff the aforesaid cattle, for the " purpose and on the terms aforesaid ; and all conditions were " performed, things happened, and times elapsed, necessary to enÂÂ" title the plaintiff to have the said cattle forwarded from Dublin " to Holyhead by the same steamer which the plaintiff avers duly "sailed from Dublin to Holyhead ; but the defendants did not for " ward the said cattle by said steamer, but, on the contrary, delayed " and detained them until the sailing of a steamer which left Dublin COMMON LAW REPORTS. 89 " and arrived at Holyhead much later than the first-mentioned " steamer ; and, by reason of the premises, the said cattle were " delayed and detained upon their said journey, and plaintiff incurred " all and singular the special damage in first count mentioned. There was also a count for non-delivery of the cattle at HunÂÂtingdon within a reasonable time. To the first count the defendants pleaded a traverse of the conÂÂtract, and a waiver of it by the plaintiff. To the second count the defendants pleaded, first, a traverse of the contract, for the purpose and on the terms alleged. Secondly; a mutual waiver of the contract before breach, and discharge of the defendants by the plaintiff from all liability thereunder. Thirdly ; " That the contract therein stated was subject to a condition, viz, " that if it should be found, on the arrival of the cattle in said "paragraph mentioned, in Dublin, that there was not room for the " conveyance of same by the steamer leaving the North-wall, "Dublin, at the hour in said paragraph stated, the defendants "should not be bound to forward said cattle by said steamer; "and defendants aver that, on the arrival in Dublin of said, cattle, " there was not room for the conveyance of same by the steamer " leaving the North-wall at said hour ; and the defendants aver that " the grievances in said paragraph complained of were caused and " occasioned by said want of room, and not otherwise." And, fourthly ; " That the cattle in said paragraph respectively menÂÂ" tioned are the same cattle ; and defendants say that said cattle " were delivered by the plaintiff to, and accepted and received by "the defendants, to be carried and conveyed under and subject " to a certain contract and condition, which rendered them not "liable for the loss, damages, and expenses, in said paragraph " respectively mentioned, to wit, that the Company would in no " case be responsible for the delivery of cattle or live stock at "any particular time, or for any particular market; and defendants "aver that the plaintiff's claim was a loss, within the true intent " and meaning of said condition, and not otherwise." The case was tried by the LORD CHIEF BARON, before a special jury, at the sittings after Trinity Term 1864. The material facts voL. 17 12L 90 COMMON LAW REPORTS. FITZGERALD. Upon the amount of damages, his Lordship left the following questions to the jury :-First, did any damages result to the plaintiff from the delay in the forwarding of the cattle, by reason of the loss of the sale of such cattle at Huntingdon or Harford ?-Yes. Secondly; did any damage result to the plaintiff from such delay, by reason of the cattle, in consequence of such delay, catching the distemper ; or by reason of the distemper, in consequence...