Atlantic & Birmingham Railway Co. v. Howard Supply Co.
125 Ga. 478 | Ga. | 1906
Evans, J.
(After stating the facts.) 1. Under the proved custom touching the shipment of .cross-ties from Murray’s, at which, station the railway company had no agent, there was a constructive delivery of the shipment by Elias Moore.Jr., to the defendant, before he applied to its agent for a receipt or bill of lading. Wilson *481v. A. & C. Ry. Co., 82 Ga. 389, and cit. Shippers were invited to load cars at that “non-agency” station, and to take a receipt from the conductor of the train when the cars were started on their journey, or, after loading a car, to go to the station at Beach and get a receipt for it from the agent at that point. The custom was a loose one and subjected the company to the risk of imposition and incident loss; for it.was bound to keep itself informed as to the persons who made delivery to it by loading its cars at Murray’s and to issue its receipts to those persons instead of others who were not entitled thereto. Its conductor made a mistake of fact when he recognized Ehrlich as the person entitled to a receipt for the car-load of ties which had been, loaded by Elias Moore Jr., and who was doubtless then on his way to Beach to get a receipt from the agent there, after having complied with every requirement exacted by the railway company respecting due delivery to it of the shipment. The agent appreciated the fact that a mistake had been committed, and undertook to intercept the car before it reached Waycross and “get the matter straight.” The car was then in the actual, phjrsieal custody of the defendant railway company, on the way to its proper destination, and the only matter to be gotten “straight” was the predicament in which the company found itself, brought about by the act of its conductor in giving a receipt to a person other than the one who had parted with his actual possession of the ties upon the implied assurance of the company (Ga. So. R. Co. v. Marchman, 121 Ga. 235) that it would accept loading of them on its cars as the exact equivalent of actual delivery to it for shipment and would hold them subject to his directions as to destination, etc., till he could get into touch with its agent at Beach and procure a receipt or waylay a passing conductor to whom such directions could be given and from whom he could get a receipt. When Moore called for his receipt, he was entitled to get it irrespective of whether the agent could “get the matter straight” or not by intercepting the car before it reached Waycross; and when the agent actually gave the receipt, he .was acting within the scope of his duties, and not with reference to a past transaction. See Hematite Mining Co. v. E. T., V. & G. Ry. Co., 92 Ga. 268. The company was bound at its peril to “get the matter straight” before delivery was made in Brunswick to Ehrlich. The record discloses that he claimed the shipment at that point, that it was turned over *482to Mm, and that he disposed of-it for his own benefit. The company committed its second mistake in suffering delivery to be made to him after notice to it that a receipt and bill of lading had been improperly issued to him instead of to the person whom it was bound to recognize as the true owner and real shipper of the ties. After Moore made delivery to the company in the manner designated by it, i. e. by loading the ties on one of its cars at Murray’s, the carrier was not at liberty to excuse failure to deliver to his consigneenn the ground that Moore did not have title to the ties, unless some third person who was in fact the true owner interposed and asserted his claim before delivery to the consignee could be made. Civil Code, §2286; Carter v. Southern Ry. Co., 111 Ga. 40. And even though Ehrlich may have vigorously asserted his claim to the ties after they reached Brunswick, in making delivery to him the company took the risk of being held liable to Moore or his consignee in the event Ehrlich was not in fact the true owner. He does not appear to have been such. According to his testimony, he bought the ties from parties who claimed to be the owners thereof, but who, so far as he knew, had never been in possession of the ties nor really had any title to or interest therein. The ruling out of his testimony 'was therefore eminently proper, since it afforded no excuse for failure to deliver the ties to the Howard Supply Company, the consignee designated by Moore, who was, as already remarked, the person the company was bound to recognize as true owner and shipper' until some one else appeared who asserted a superior claim of title.
2. The suit was one by a consignee to recover damages for neglect ■on the part of a common carrier to comply with its legal duty to make delivery of freight in accordance with the terms of a contract of affreightment made in behalf of the plaintiff, which was alleged by way of inducement. As a general rule, the measure of damages for failure to perform such a contract is the value of the shipment at the place of destination, less the cost of transportation to that point. Cooper v. Young, 22 Ga. 271; Taylor v. Collier, 26 Ga. 122; Rome R. Co. v. Sloan, 39 Ga. 641; Wilson v. Ry. Co., 82 Ga. 391. Unless the freight charges were prepaid, which does not appear to be the case, the plaintiff was npt entitled to recover the full market price of the ties in Brunswick at the time delivery of the shipment ought to have been made. Nor'was there any admission *483by the defendant as to what was the market price of the ties in Brunswick at that time, nor did the proof submitted by the plaintiff demand a finding that the ties were then worth in the Brunswick market precisely the amount sued for. The only evidence offered on the subject was the testimony of Moore, the consignor, who testified that he received in payment for the ties a draft for $68.68,- which was afterwards paid by the plaintiff; that the “ties were worth at the time from thirty to thirty-five cents per tie, delivered on the road, and the market price in Brunswick was about forty-four cents at the time.” Testimony that a particular article is worth “about” a particular amount stated is not to be regarded as positive and unequivocal proof that the article has a value of that exact amount in the market (Equitable Mortgage Co. v. Watson, 116 Ga. 683), but merely as an expression of an opinion which' is not altogether precise and definite. Very liberal rules obtain with respect to allowing proof of .market value to be made by the opinion of witnesses who profess to be acquainted with prevailing market prices and who are sufficiently expert to be able to properly grade products and pass upon their quality and market worth. Central R. Co. v. Skellie, 86 Ga. 692-694. But it is a mistake to suppose that the opinion of an expert witness on the subject i's absolutely binding on the jury, and it is error to direct a verdict upon any such supposition. Baker v. Richmond Works, 105 Ga. 225. Such an error was committed in the present case.
