300 F. 311 | 6th Cir. | 1924
Defendant.in error (the plaintiff below, 'and hereinafter called plaintiff), the Island & Gypsum Fruit Company, an Ohio corporation engaged in the business of selling and shipping fruit, brought this action against the plaintiff in error (the defendant below, and hereinafter called defendant), the American Railway Ex
Whether there was error in any of the rulings thus challenged depends upon the correctness of the following contentions advanced on behalf of the defendant: (1) That plaintiff was not entitled to bring this action, because at the time of its shipment of the fruit in question it had sold such fruit to the consignees thereof, and therefore had no interest therein sufficient to support a recovery of the damages claimed, which could be recovered only by such consignees, if- at all; and (2) that plaintiff failed to show by competent, sufficient evidence that defendant was guilty of any unreasonable delay in shipment which was the cause of damage to the fruit in question.
1. In the petition by which the action was commenced it is alleged, with proper particularity, that the defendant “agreed to carry safely, by express, for the plaintiff,” six carloads of peaches (described in the petition), and to deliver them, within a reasonable time, to the named consignees, at the designated places (as set forth in the petition), for which “plaintiff agreed to pay to said defendant,” and did cause to be paid to it, the agreed charges; that defendant failed to carry and deliver such peaches within a reasonable time, as so agreed; and that “by reason thereof said peaches became overripe and decayed, and the plaintiff has been damaged thereby” in the amount already mentioned. There was substantial evidence on the trial in support of all of these allegations. It is undisputed that plaintiff arranged with defendant for the shipment of this fruit, and received from defendant the express receipt issued by it. It is true that such receipt recited that its provisions should inure to the benefit of, and be binding upon, both the consignor and the consignee; and it is also true that the evidence shows that just prior to the making of the' shipment plaintiff had sold the fruit to the persons to whom it was so shipped, f. o. b. place of shipment. It is, however, conclusively shown by the record (and appears to be undisputed) that, immediately on the arrival of such fruit at its destination, the purchasers to whom it was consigned examined it and refused to accept any of it, on the ground that it was soft and unfit for the use for which it was sold, and that plaintiff, being promptly so notified, consented that all of the fruit might be disposed of for its account and the purchasers released from all obligations under their purchase. It is clear from the
2. The careful examination which we have devoted to the entire record satisfies us that defendant has no cause for any complaint. The trial court correctly instructed ' the jury (and there was ample evidence making such instructions applicable) that they must determine as a question of fact whether the defendant accepted these peaches for delivery in express service, to be carried as express and to be delivered within the time that express shipments were customarily and ordinarily delivered between the points of shipment and of destination respectively; that if they found from the evidence that the defendant accepted such peaches, as an express company and for express service, it was required to carry and deliver them within the usual and customary time in which shipments of merchandise of like character were ordinarily and customarily shipped by express; that the question as to what would be such reasonable time would depend upon the time of delivery to the express company, the distance over which the peaches were to be carried, and the usual and customary facilities and routes for transporting such merchandise; that if the jury found, from the greater weight of the evidence, that plaintiff delivered these peaches to the defendant, and the latter accepted them for express shipment, and, when so delivered and accepted, they were in good marketable and salable condition, and defendant foiled to deliver them at their destination within a reasonable time, and as a direct result thereof they became spoiled and unfit for the market for which .they were to be- used, plaintiff would be entitled to recover; and that if such peaches were not in good condition when so delivered to the express company, by reason of the manner in which the plaintiff packed them, or because of their condition or age when placed in the cars, or if they were otherwise spoiled by the plaintiff by the manner in which it packed them in such cars, then plaintiff would not be entitled to recover. There was abundant evidence which warranted the court in submitting the case to the jury, and which justified the jury in awarding a verdict in favor of the plaintiff. A recital of such evidence
We find no error in the record, and the judgment accordingly is-affirmed.