62 S.E. 1091 | N.C. | 1908
The record shows that on 6 December, 1906, the Carnegie Steel Co. delivered to the Pennsylvania Railroad Co., at Pittsburg, Penn., a carload of iron consigned to the Carnegie Steel Co., Asheboro, N.C. "notify Asheboro Wheelbarrow and Mfg. Co." The bill of lading was properly endorsed to the plaintiff company with a sight draft attached, and sent to bank for collection. Plaintiff paid the draft, took the bill of lading and received the carload of iron 17 January, 1907. It was delivered to defendant company at Alexandria 11 December, 1906, and reached Asheboro, N.C. 16 January, 1907. The distance between Alexandria, Va., and Asheboro is 300 miles. The car should have moved about 100 miles a day. There was evidence tending to show the value of *192
plaintiff's plant, number of hands idle by reason of delay, wages paid, etc. The plaintiff sues for damages caused by the delay in delivering the iron. Defendant moved for judgment of nonsuit upon the plaintiff's evidence; motion denied, and plaintiff excepted. Defendant submitted several prayers for instructions in regard to the measure of damages, all of which were refused; defendant excepted. His Honor (262) instructed the jury that the measure of damages was the legal interest on the capital invested in the plant during the time it was necessarily idle, as a result of the delay, and the wages paid the hands during such time. Defendant excepted. There was a verdict for plaintiff, assessing its damages at $100. Judgment. Defendant duly assigned error and appealed.
After stating the case: It is unnecessary to discuss the exceptions directed to the admission of evidence, because we are of the opinion that his Honor should have granted the defendant's motion for judgment of nonsuit. It is common learning that when the vendor delivers an article to the common carrier to be transported by the usual route to the vendee, taking an open bill of lading, the title to the article passes to the vendee or consignee. This is true, although, by the terms of the sale, the vendee is to pay cash. For an injury to the article while in transit, or delay in transportation, or delivery, the carrier is liable to the consignee. Stone v. R. R.,
"By such a bill of lading the seller does not reserve merely a lien, but the absolute right of disposal of the goods." 6 A. E. Enc., 1066, note 1. Until the draft is paid, the contract between the consignor and consignee is executory, that is, the consignor agrees to ship and place in the hands of the carrier the goods at the place designated, to be sold and delivered to the consignee when the draft is paid, both the title and possession remaining in the consignor until that time. If, in such case, the goods were injured or destroyed, the loss falls upon the consignor. If they are delayed in the carriage, the carrier is liable to the consignor. It is the fault of his agent. If the contract of the consignor imposed upon him the obligation to deliver the goods at any specified time, or in a reasonable time, and they are delayed by his agent, the consignee may recover of the consignor such damages as he may sustain as were in the contemplation of the parties. The only evidence in this case was that the goods were shipped to consignor's order, "notify" plaintiff. The authorities appear to be uniform that, in such case, the consignee is not brought into any contract relation with the carrier and must look to the consignor for any damage sustained by a delay, who, in turn, must look to the carrier. In R. R. v. Barnes,
We do not wish to be understood as approving the ruling of the Court in regard to damages. There is nothing in the evidence, as set out in the record, to show that the case comes within the principle of Rocky MountMills v. R. R.,
Error.
Cited: Gaskins v. R. R.,