Missouri, Kansas & Texas Railway Co. v. Hutchings, Sealy & Co.

Citations

• 78 Kan. 758
• 99 P. 230
• 1908 Kan. LEXIS 141

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Petition — Construction—Action ex Contractu or ex Delicto. Where a petition contains a good cause of action for a breach of contract the addition of words or averments which are appropriate to a cause of action for a wrong will not change the action from contract to tort. And in case of doubt the courts are inclined against construing the pleading as embodying a cause of action for a tort.</p> <p>2. Carriers — Bills of Lading — Possessionm of the Property — Innocent Purchaser. Whether the agents of a common carrier have authority to bind the carrier by the issue of bills of lading when the property is not in the possession of the carrier is a question upon which two antagonistic doctrines prevail: (a) One holds that it is not within the scope of the authority of an agent of a common carrier to issue a bill of lading without the actual receipt of the goods, and that the bill of lading so issued conveys no rights to an innocent holder thereof. This rule obtains in the federal courts, and in many of the state courts. (6) The second holds the carrier liable because the knowledge whether the goods have been received, and therefore the power in fact conferred, lies peculiarly with the carrier’s agent, who is held out to the public as having authority to make a statement upon which innocent .parties may rely, and the carrier is therefore estopped to deny the receipt of the goods as stated in the bill. This doctrine, resting upon the principle of estoppel in pais, is the law in Kansas, as declared in Savings Bank v. A. T. & Santa Fé Bid. Co., 20 Kan. 519.</p> <p>3.. Contracts — Bills of Lading — Proper Law of the Contract. In an action against a common carrier based upon bills of lading, involving no question with respect to the right of the carrier to limit its common-law liability, the rights and obligations of the parties are to be determined by the law of the place where the contract was made.</p> <p>4. --- Action to Recover Money Adv