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This duty does not arise out of any new agreement, but is an implied obligation growing out of the original contract of carriage. Chicago & Alton R. R. Co. v. Kirby, 225 U. S. 155, 32 Sup. Ct. 648, 56 L. 'Ed. 1033, Ann. Cas. 1914A, 501 ; Great Western Ry. Co. v. Crouch, 3 Hurlst. & N. 182, 195; Metzenburg v. Highland Ry. Co., 7 Scotch Sess. Cas. (3d Series) 919, 922. As I have shown, the breach of duty in this case arose from the misinformation given by the Santa Fé concerning the fact of delivery, thus preventing plaintiff from securing a return of the goods in time to enable him to sell them for a sum which then represented their value. Had the loss arisen with respect to some matter pertaining to the return of the goods, as distinguished from their delivery, it might be plausibly urged that a new contract had attached, to which the initial carrier for the original carriage was a stranger.

But I can see no difference between the present case, where the loss arose from misinformation given by the ultimate carrier concerning the fact of delivery, and one where the loss arose out of its misdelivery or total failure to deliver. By its through bill of lading this defendant constituted the Santa Fé its agent “for all purposes of transportation and delivery," and the case must be treated as though the ultimate point of destination was on defendant's own line, and defendant's obligations are the same as if the loss complained of had been occasioned by its negligence. Galveston, Harrisburg & San Antonio Ry. Co. v. Wallace, 223 U. S. 481, 491, 492, 32 Sup. Ct. 205, 56 L. Ed. 516.

In Nashville, C. & St. L. Ry. Co. v. Dreyfuss-Weil Co., 150 Ky. 333, 150 S. W. 321, it was held that, where goods were shipped to the order of the shipper with instructions to notify another party on arrival, it was incumbent upon the company to notify the shippers, on refusal of the person named in the bill of lading to be notified to accept delivery, and that the initial carrier was liable under the act for the destruction of the goods while lying in the warehouse of the ultimate carrier, no such notice having been given. In that case the court, relying on the term “transportation" as defined in section i of the act, said that:

It “must be presumed to have been intended by Congress to go as far as Congress had power to regulate the subject, and to make the initial carrier liable for any loss of the property until its interstate shipment was completed."

Section 1 of the act says:
"The term 'transportation shall include

all services in connection with the receipt, delivery, elevation, and transfer in transit, ventilation, refrigeration or icing, storage, and handling of property transported.”

I can conceive of no circumstances under which "storage” may become a part of the duty of a carrier by land, while the goods are en route or before they have reached their final destination and the duty to deliver has attached. Undoubtedly the Interstate Commerce Commission has jurisdiction to regulate storage charges of railroads amenable to the act. Their exercise of such jurisdiction is notorious. See Wilson v. Penn. R. R. Co., 14 Interst. Com. R. 170. It seems

By it

to me clear, taking the above paragraph of section 1 as a whole, and having regard for the phrase "storage and handling of property transported," and especially in view of the intent of Congress in passing the act, that the duties imposed by the act continue until every obligation assumed by or as a necessary incident to the contract of carriage has been fully performed.

Nor do I find anything in section 20 to limit this result. the initial as well as the subsequent carrier is made liable "for any loss, damage or injury to such property.” This phrase is not necessarily confined to physical “damage or injury." The words must have been used with regard for their effect on the value of shipments, which was the practical question involved, and the value of seasonable goods may as readily be diminished by their unlawful detention until the season had passed as by acts causing physical depreciation. In Coovert v. Spokane, P. & S. Ry. Co., 80 Wash. 87, 141 Pac. 324, the consignee had refused to accept the goods, whereupon the consignor surrendered the bill of lading to the initial carrier and ordered the return of the shipment; but the ultimate carrier thereafter delivered the goods to the consignee, and they were lost to the consignor. It was held that the initial carrier was liable under the act, and could be held as for a conversion. This case goes further than it is necessary to go in the one under consideration, because the loss arose from an act done after a return order had reached the ultimate carrier.

If the case of Norfolk & W. Ry. Co. v. Stuart's Draft Milling Co., 109 Va. 184, 63 S. E. 415, is opposed to the foregoing views, I think it was not well decided, and is opposed both to reason and authority.

I think the determination was right, and should be affirmed.

(166 App. Div. 328)

STALEY V. MURRAY et al. (No. 21/63.) (Supreme Court, Appellate Division, Third Department. March 3, 1915.) 1. JUDGMENT Omw 642–CONCLUSIVENESS—EFFECT OF APPEAL.

If a judgment in a mortgage foreclosure in itself would not prevent an action on the mortgage, affirmance thereof in the Appellate Division and in the Court of Appeals could give it no greater effect; there being nothing to show that either court passed on any question, except the one on which the judgment below was granted.

(Ed. Note.-For other cases, see Judgment, Cent. Dig. $ 1156; Dec. Dig.

OM 642.) 2. MORTGAGES 497—FORECLOSURE-CONCLUSIVENESS OF JUDGMENT.

A judgment roll in a mortgage foreclosure showed a complaint in ordinary form, an answer admitting execution of the bond and mortgage and otherwise denying, that plaintiff produced the mortgage and showed evidence computing the amount, that defendant's motion for nonsuit was denied, and that the court made findings, the last of which was: “No proof was offered to show the amount due and unpaid on the bond and mortgage, or for what amount a cause of action accrued, or what cause of action the plaintiffs had at the time of trial. And I do find

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and decide that the complaint be dismissed." Held, that the form of the judgment, whether it be considered a judgment of nonsuit or a judgment on the rights, was immaterial as to its conclusiveness, as the judgment was in effect a holding that the burden of proof as to payments was on plaintiff, and that there was an absence of such proof, on account of which recovery could not be had, and it did not preclude another action on the mortgage under Code Civ. Proc. $ 1209, declaring that a final judgment dismissing the complaint does not prevent another action, unless it expressly declares or shows by the judgment roll that it is rendered on the merits.

[Ed. Note.-For other cases, see Mortgages, Cent. Dig. $$ 1469, 1471

1473; Dec. Dig. 497.] 3, APPEAL AND ERROR Em1073—HARMLESS ERBOR—APPEAL FROM RULING

WITHOUT PREJUDICE.

As such judgment did not preclude another action on the mortgage, whether or not the findings were in the judgment roll, the defendant was not harmed by the granting of an order to strike the findings, which might consequently be affirmed on appeal.

(Ed. Note.- For other cases, see Appeal and Error, Cent. Dig. $$ 42104247; Dec. Dig. Om1073.)

Woodward, J., dissenting.
Appeal from Trial Term, Fulton County.

Action by Jacob W. Staley, as surviving executor of Jacob Staley, deceased, against Michael D. Murray and others, to foreclose a mortgage. From an order striking out the finding of fact, exceptions thereto, and judgment, and directing a judgment of nonsuit, and from a judgment of a nonsuit entered pursuant to the order, defendants appeal. Affirmed.

Argued before SMITH, P. J., and KELLOGG, LYON, HOWARD, and WOODWARD, JJ.

Dudley & Dennison, of Johnstown (Alfred D. Dennison, of Johnstown, of counsel), for appellants.

Horton D. Wright, of Gloversville, for respondent.

JOHN M. KELLOGG, J. The judgment in this action of foreclosure dismissed the plaintiff's complaint. Another action was brought to foreclose the same mortgage, and the trial court held that the judgment in the former action was an adjudication of the rights of the parties, and that therefore the plaintiff could not recover. Thereupon the plaintiff made a motion, and obtained the order appealed from, at a Special Term held by the judge before whom the first trial was had, striking from the judgment roll in that action the findings and decision, and directing that a judgment of nonsuit be entered in place of the judgment entered; said judgment of nonsuit to show that the dismissal was not upon the merits.

A final judgment dismissing a complaint does not prevent a new action for the same cause, unless the judgment expressly declares, or it appears by the judgment roll, that it is rendered upon the merits. Code Civ. Proc. § 1209. The judgment does not state that it is upon the merits. The question therefore is: Does it appear by the judgment roll that it was rendered upon the merits? In other words, does it appear that it has been determined that the plaintiff has no cause

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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of action upon the mortgage? The judgment roll shows just what was decided. The complaint was the ordinary one in foreclosure. The answer admitted the execution of the bond and mortgage, and, upon information and belief, denied the other allegations of the complaint. The plaintiff produced the mortgage and evidence, computing the amount and showing that the bond could not be found. The record continues :

"Plaintiff rests. Defendant's motion for a nonsuit was denied. The court made findings of fact and conclusions of law, which were filed. The findings sbow that a bond accompanied the mortgage. The material finding is: 'Ninth. No proof was offered upon the trial to show the amount due and unpaid upon the bond and mortgage referred to in the complaint, or for what amount a cause of action accrued, or what cause of action the plaintiffs had at the time of the trial. And I do find and decide as matter of law as follows: That the complaint of the plaintiffs herein be dismissed, with costs and disbursements.''

[1] There was no finding that the mortgage had been paid, or that for any reason it was not an enforceable obligation. The case went off upon a question of practice, namely, whether the plaintiff could recover without proof that the debt is unpaid. The question was not free from doubt, but the court evidently construed Conkling v. Weatherwax, 181 N. Y. 258, 73 N. E. 1028, 2 Ann. Cas. 740, as casting upon the plaintiff the burden of proof on the question of payment. I am able to state, as a member of this court who participated in the decision, that no other question was considered here, and we may infer that the Court of Appeals found no other question in the case. If the judgment in itself would not prevent a second action upon the mortgage, the affirmance of the judgment in the Appellate Division and the Court of Appeals could give it no greater effect. There is nothing to show that either court passed upon any question, except the one whether it was necessary for the plaintiff to show nonpayment affirmatively. We quote from Clark v. Scovill, 198 N. Y. 279, 283, 91 N. E. 800, 801 :

"The judgment roll is the primary, but not the exclusive, guide to determine the question, and when it appears therefrom that the judgment might have been rendered on the merits, or upon a ground not involving the merits, the presumption is that it was not upon the merits, and the burden is upon the one who claims it as a bar to show by extrinsic evidence consistent with the judgment roll that it was in fact rendered on the merits."

[2] If a formal nonsuit had been granted, the court would necessarily have determined that the burden of proof of nonpayment rested upon the plaintiff and that he had produced no evidence upon that subject. While findings were made, they involve the same determination, and none other. The question is one of substance, and not of name.

We are therefore discussing technicalities when we consider whether this is a judgment of nonsuit or a judgment upon the merits. The effect in any event is the same. The fact that findings were made is quite immaterial, and is only important as showing what the court decided. Instead of finding that the mortgage was paid, we have a finding, in substance, that there is an absence of proof on that subject. The judgment, therefore, only establishes that no proof was offered on that subject, and for that reason a recovery could not be had.

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It is urged that Keyes v. Smith, 183 N. Y. 376, 76 N. E. 473, and Oakes Mfg. Co. v. City of New York, 206 N. Y. 221, 99 N. E. 540, 42 L. R. A. (N. S.) 286, are opposed to these views. Properly understood, those cases only emphasize the rule we are contending for. In the Keyes Case the action was brought to reform the assignment of a written instrument, absolute upon its face; it being claimed that it was only intended as collateral, and that by mistake and fraud it took its form. The defendant moved for a nonsuit at the close of the plaintiff's case. Formal findings of fact were made by the court. It was found as a fact that the instrument was not made or induced by any fraud, or false or fraudulent statement, and that there was no mutual mistake of the parties, and as a conclusion of law the complaint was dismissed. The plaintiff sought a reversal upon the ground that there was some evidence, and therefore a nonsuit was improper. The Court of Appeals found that there were findings upon all the questions at issue, and therefore the judgment could not be treated as a nonsuit, and it could not review the facts, but must affirm the judgment; that the plaintiff had mistaken his remedy, and instead of appealing should have applied to correct the judgment, if it was erroneously entered. In the Oakes Case the trial court intimated that there should be a nonsuit, but made findings involving the merits of the case.

The following quotation from the opinion of the Court of Appeals (206 N. Y. page 225, 99 N. E. page 540, 42 L. R. A. (N. S. 286) indicates the effect of its decision :

"Unfortunately, however, for the plaintiff, it and the defendant decided to submit requests for findings, and those submitted by the former, numbering 37 requests to find facts and several request to find conclusions of law, were all passed on by the trial justice, and the result was that, between passing on those requests and various others which I understand to have been submitted by the defendant, findings were made generally on the merits of the action, and on which a judgment was entered dismissing the complaint.”

The decision in those cases, therefore, proceeded upon the ground that the findings as made actually disposed of the merits of the case.

[3] If the findings in the case at bar had been that the mortgage had been paid, it would be a final determination between the parties so long as that finding remained in the record. The fact that findings were made is, therefore, not in itself very material; the important question is: What are the findings? Do they show that the same matter now before the court was decided in the former case? A judgment is res adjudicata only as to the matters decided. The trial judge, at Special Term, has granted the motion to strike out the findings, upon the ground that his determination in fact was a nonsuit and not a trial. As we have said, it is immaterial what it is called. The effect of it is that the plaintiff was nonsuited, because he offered no evidence upon the only issue before the court, and the decision was placed solely upon that ground. I think the former judgment is not a bar to this action, and that this motion was entirely unnecessary. Nevertheless it was made, and was decided against the appellant. But it does no harm. The effect of the judgment, with the findings out or in, is the same. He is therefore not aggrieved by the decision. Courts are organized to decide actual controversies between the par

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