109 Ark. 218 | Ark. | 1913
(after stating the facts). It is contended by counsel for appellant that the bill of lading was the contract of shipment between the parties to this suit, and that parol evidence to show a custom of delivering the carload shipments at a designated place next to the sheds of appellee was incompetent because it tended to vary or contradict the written instrument. In the case of Arkadelphia Milling Co. v. Smoker Mdse. Co., 100 Ark. 37, the court said:
“The liability of the common carrier ceases with delivery of the goods at the point of destination according to the directions of the shipper, or according to the usage and custom of the trade at such place of destination.”
Barton was a small station on appellant’s line of railroad. It had no warehouse in which to store freight. It had a small platform on which it delivered small lots of freight. Appellee was the principal shipper at that point, and appellants had built a private spur track running next to the sheds at the rear of appellee’s mill, and this spur track was for the exclusive use of appellee. The testimony shows that it was the custom of appellant to deliver carload shipments to appellee by spotting the cars on this spur track next to appellee’s shed. This was an established custom, recognized both by appellants and appellee. The place of unloading was within the limit of the station grounds at Barton, and the proof of these facts did not tend to vary or contradict the bill of lading, and was not, therefore, incompetent. A general custom of the business or a well established usage at the place of delivery becomes a part of the contract and governs as to the place, time and mode of making the delivery. Elliott on Railroads, (2 ed.), vol. 2, § 710.
It is next contended by counsel for appellants that they had delivered the cotton to appellee, and that they were no longer liable as carrier when the cotton was destroyed by fire. . We can not agree with them in this contention. This case is not like the case of Rothchild Brothers v. Northern Pacific Railway Co., 68 Wash. 527, 40 L. R. A. (N. S.) 773, 123 Pac. 1011. There, not only had the bill of lading been surrendered, but the car had been spotted on the delivery track before the fire occurred. Here the car had not been spotted at the place where appellee had requested the cotton to be delivered, but, on the contrary, appellants’ agents had agreed to place it there on the next day according to the existing custom. Appellee had not received the cotton, but had gone into the car only for the purpose of taking out cotton for its immediate use, and it was understood that the remaining cotton should be spotted on the track next to its shed before it would be unloaded. This was in accordance with the established usage between the parties. There was also a definite and recognized custom between appellants and appellee that weekly payments of freight would be made and receipts given for the goods, whether they had arrived or not, and in conformity with, this custom between appellants and appellee, the payment of freight was made and the receipt for the cotton signed. Under these circumstances, it can not he said, that appellants had delivered the cotton to appellee, and that it had accepted it.
The case was submitted to the jury under proper instructions, and the judgment will be affirmed.
