74 W. Va. 289 | W. Va. | 1914
In an action upon an account for freight and demurrage charges, tried by the court in lieu of a jury, on an appeal from a justice of the peace, on an agreed statement of facts, plaintiff recovered a judgment against defendant and Herbert M. Crawford, surety on its appeal bond, for $193.36, and defendant was granted this writ of error. About June 22, 1909, "defendant shipped two carloads of coal from its mine in Barbour county, over plaintiff’s road, consigned to Interlake Fuel Company at Sandusky, Ohio. Defendant tacked a card on each car, marked “Memorandum for Agent,” bearing the number of the car, the place of destination and name of consignee, which was its usual method of shipping coal. There was no other evidence of the contract of shipment. The cars arrived at Sandusky on the 27th June and the consignee was immediately notified by plaintiff’s agent and requested.to advise what it wished done with the coal. Numerous other requests were made, but no directions given, and on August 23rd the consignee notified the plaintiff’s agent that it declined to accept the coal on account of its quality, and refused to pay the freight and demurrage charges. Plaintiff’s agent then inquired of the consignee to know who was the shipper, and was erroneously informed
Defendant’s liability for the freight charge is not controverted. The shipper is always liable for the freight in the absence of a special contract exonerating him, and the consignee becomes liable also when he accepts the shipment. 2 Hutchinson on Carriers, Sees. 799 and 810. Assuming that the consignee was justified in refusing to accept, for there was no duty on the carrier to test the question of ownership between consignor and consignee, it was not liable to plaintiff for the freight, and not being liable for the freight, it follows that it was not liable for demurrage, unless perhaps it might be liable on account of its unreasonable delay in notifying plaintiff that it would not accept the coal, which is a question not raised. The rule respecting the time when the extraordinary liability of a carrier ceases is not uniform throughout the states of the Union. But according to the rule announced in Moses v. The Railroad, 32 N. H. 523,
The next question is, has the carrier a lien on the goods carried for demurrage? The decisions are in conflict on this question also, many of the earlier cases holding that he has no lien. But nearly all of these cases also hold that the right to demurrage does not exist in the absence of a contract, which we have already said is against reason and the weight of modern decisions. But having determined that the carrier has a right to charge demurrage, we see no reason why he should he denied a lien. Would it not be inconsistent to allow demurrage and deny a lien on the goods to secure its payment? The relation of a railroad company to the owner of a shipment in carload lots, whose duty it is to'unload, is analogous to that of a bailee for hire. The law allows such bailee a lien, and we are of the opinion that, by analogy, it exists in favor of a railroad company independent of special contract with the shipper. The following cases so hold: Schumacher v. Railway Co., 207 Ill. 199; Miller v. Mansfield,
The consignee declined to receive the coal. Whether it was justified in doing so does not appear, nor is that question material. Plaintiff had a right to look to the shipper for the payment of freight and demurrage, accruing after it was notified of the consignee’s refusal to accept the shipment. When the coal was loaded into plaintiff’s ears and consigned to the Interlake Fuel Company there was an implied guaranty by the consignor that it would be received by the consignee. The shipper never ceased to be liable for the freight, and when the shipment was rejected it became liable also for the demur-rage, occasioned by its breach of duty in disclaiming ownership and in not advising plaintiff what disposition to make of the coal, after it was notified on the 25th October that the consignee had declined to receive it. It then became the duty of the consignor to relieve the railroad company of further detention of its cars. But the decisions of the courts are likewise in conflict on this question, some courts holding that no notice to the consignor of the consignee’s refusal is necessary in order to give the carrier right to charge demur-rage. Mr. Hutchinson, Vol. 2, Sec. 721, asserts the better rule however to be that it is the duty of the carrier to give notice to the consignor of the consignee’s refusal. Such requirement imposes no heavy obligation on the carrier, and is just to the consignor who, in the absence of notice, would have a right to presume that the goods had been received. Especially would such presumption be reasonable in this case, as the shipment Avas made by the consignor to the consignee apparently upon the order of a third party— Johnson Brothers of Bellaire, Ohio. The judgment of the court seems to include demurrage for delay of the cars
Plaintiff sold the coal without notice to the consignor, and without legal proceedings to enforce its lien. This was clearly illegal. Unless authority be expressly given to do so, a bailee has no right to sell, except in certain emergencies, but must seek the aid of a court for the enforcement of his lien. 2 Hutchinson on Carriers, See. 785. But it is admitted that plaintiff used reasonable diligence to get the best price obtainable for the coal, no damage to the consignor’ is shown by the unlawful sale and, therefore, the illegality of the sale is no cause for reversing the judgment. .The judgment is affirmed.
Affirmed.