Beedy v. Pacey

22 Wash. 94 | Wash. | 1900

The opinion of the court was delivered by

Fullerton, J.

The respondents, who were plaintiffs below, brought this action against the appellant to recover the value of certain lumber which they alleged the appellant had converted to his own use. They alleged that on or about the 20th day of September, 1897, they, through their representatives, at Seattle, delivered to the defendant for shipment to Hope City, or Sunrise City, Alaska, eleven thousand one hundred fifty feet of lumber, for which they agreed to pay as freight ten dollars per thousand feet; that the appellant agreed to deliver the lumber to respondents, or their representative, W. H. Johnson, at Hope City, 'or Sunrise City, Alaska; that upon the arrival of the lumber at Sunrise City the respondents, in company with Johnson, demanded of appellant’s agent the delivery to them of the lumber at Hope City, which the agent refused; that they then agreed and offered to receive the lumber at Sunrise City, and offered to pay the freight on the same, and that appellant refused to deliver the lumber, or any part of it, and converted the same to his . own use; that the lumber was of the value of sixty dollars per one thousand feet. The appellant, for answer, denied the main allegations of the complaint, and alleged affirmatively that one F. A. Johnson, and one McIntyre, acting for and on behalf of the respondents, requested the appellant to transport upon his schooners about forty-eight thousand feet of lumber from Seattle, in the state of Washington, to Sunrise City, in the territory of Alaska, and delivered to appellant the lumber for shipment at Seattle; that prior to the time the lumber was loaded, Johnson and McIntyre stated to appellant that some of the lumber was to be delivered to respondents, and the balance to the Polly Mining Company, at Sunrise City; that the appellant thereupon requested that the said McIntyre and Johnson segregate and separate the lumber which was to be delivered to the Polly Mining Company, from that which was to be delivered to the respondents, but that they refused to do so, and instructed the appellant to ship the lumber as a whole, without segregation, and to deliver to respondent such portion of the lumber as the respondents should at that point identify as shipped to them, and should accept, and to deliver to the Polly Mining Company the balance of the lumber; that he carried the lumber, without segregation, in a mass, to Sunrise City, and immediately notified the respondents at Sunrise City of the arrival of the lumber; that the respondents thereupon inspected and examined the lumber, and refused to receive or accept any portion of it, and refused to pay the balance of the freight charges then due, or any part thereof; that theretofore, and prior to the shipment of the lumber, the respondents had paid to appellant one hundred dollars as part of the freight; that, after the arrival of the lumber at Sunrise City, and their refusal to accept the same, the respondents demanded repayment of the freight money advanced, which was repaid them by the appellant and accepted by respondents as a full payment, satisfaction, and discharge. The reply admitted that the lumber was shipped at Seattle by respondents’ agents, to be delivered upon identification and selection; admitted the repayment of the advanced freight money; and alleged that the appellant refused to permit the respondents to identify and select the lumber and pay the freight thereon, but demanded that they pay the freight on the whole cargo of lumber, amounting to about $500, as a condition precedent to the selection of their own lumber.

On the trial each of the parties put in evidence tending to support the allegation of their respective pleadings. The respondents’ evidence tended to show that the appellant’s agent refused to recognize them in the transaction at all, or deliver the lumber to the person to whom it was billed, unless that person would not only pay the freight on the whole cargo, but the purchase price of the lumber as well. The appellant’s evidence tended to prove that neither the respondents nor the other parties having lumber in the shipment would receive the same, because, as they claimed, it was not suitable for the purposes for which they- desired td use it; the agent to whom it was billed, testifying that that was the principal reason why it was not accepted. It was shown further that subsequent to this time the appellant’s agent sold some three thousand feet of the lumber included in the shipment to the respondents. At the conclusion of the evidence the trial court took from the jury all questions of fact save that of the value of the lumber, and instructed the jury to find the value of the lumber at Sunrise City, deduct from that the freight to be paid, and bring in a verdict for the respondents for the remainder.

In withdrawing from the jury all questions of fact save that of the value of the lumber the trial court erred. If it be true that the respondents did refuse to receive the lumber, the fact that the appellant, through his agent, subsequent to that time, sold part of the lumber, would not warrant an instruction that he had converted to his own use that part, much less would it warrant an instruction that he had converted the whole amount shipped. The ordinary duty of a carrier, where the consignee refuses to receive the goods shipped, is to store them either in his own warehouse or that of some responsible third party, notify the shipper or owner of such refusal, and hold them for a reasonable time subject to further orders. But if the shipper be the owner and consignee^ no such duty is imposed on the carrier. The refusal of the owner to accept the goods, under such circumstances, constitutes an abandonment of the goods, and the owner is estopped from afterwards asserting that the carrier has converted them, no matter what disposition the carrier makes of them. The owner cannot make a sale of his goods to the carrier in that way.

There being a substantial controversy in the evidence over the question of conversion, the judgment is reversed and the cause remanded for a new trial.

Gordon, O. J., and Dunbar and Beavis, JJ., concur.