119 Ala. 534 | Ala. | 1898
Appellant, defendant in the court below, delivered to the Cleveland, Cin. Chic. & St. L. Railroad Co. at Columbus, Ohio, two car loads of bridge material, consigned to itself at Eunola, Alabama, and paid the full freight charges thereon through to Geneva, Alabama, which town is close by Eunola. The goods Avere receiAred by the railroad company under an agreement, as shoAvn by the bill of lading, to carry them “to the said destination, if on its road, or otherwise to deliver them to another carrier on the road to said destination,” and were transported by it to Cincinnati, and there delivered to the Louisville & Nashville Railroad Co., by which company they Avere carried to Careyville, Florida. At Careyville appellees, who were common carriers operating a steamboat on the river between Careyville and Eunola, called for the goods, at the request of appellant’s agent who was constructing a bridge at Eunola, and presented the bill of lading, AAdiich, as plaintiff testifies, avus marked in one place “prepaid” and in another “collect,” but a copy of Avhich, attached to the deposition of the initial carrier’s agent at Columbus, has plainly Avritten across the face there
Plaintiff, as shown by his own testimony, was a connecting carrier with the Louisville & Nashville Railroad, and had traffic arrangements with that road under which it was their custom, when the freight charges were prepaid on goods received by them from that road, to deliver the goods to the consignee and collect their freight charges from the railroad company, and not from the consignee. The way bill sent by the L. & N. R. R. Co. to its agent at Careyville shows that the goods were to be carried by that company from Cincinnati to Eunola, and that the total charge therefor amounted to $129.86, and at the head of the columns in which the charges are placed are the words, “freight charges collected,” and the agent at Careyville testifies that he settled according to this billing. Whether the word “collected” was on the way bill when he received it, or whether he added it after the payment by plaintiff, is not shown by the testimony. The way bill from the L. & N. R. R. Co. to plaintiffs does not contain anything to indicate that the charges were prepaid. It is clear, however, that both plaintiffs and the agent at Carey-ville, having inspected the bill of lading, either actually knew that defendant had contracted for through transportation and paid in advance the charges from Columbus to Geneva, or had knowledge of facts which should have put them on inquiry, which, if followed up, would
But according to the evidence, there was a separate account of $16 due plaintiffs for carrying goods for defendant on a different occasion, whether before or after the other transaction does not clearly appear. If it was before, and if the $125 paid by defendant was a payment on the whole account, then there could be no recovery of the $16 account, since it Avas more than satisfied by the $125 payment; but if it was afterwards, or if the $125 were paid on the one transaction only, as the evidence tends to shoAAq and was not a general payment on the whole account, then plaintiff AAras entitled to recover the $16 account, unless the pleadings were sufficient to authorize the defense of set-off. The judgment entry recites that “defendant withdrew all its pleas except that denying that plaintiff was a partnership, Avhich plea remains on file. Defendant then pleaded in short, by consent, the general issue with leave to give in eAddence any matters which could be properly specially pleaded * * * Issue being joined upon the pleadings,” etc. Under such plea, unobjected to, and issue joined thereon, the defense of set-off is available as though specially pleaded. The $125 liaAdng been paid by defendant’s agent to plaintiff under a mistake and in ignorance of the fact that the freight charges had been prepaid, defendant had a good cause of action against the plaintiff to recover back the same, and the claim was therefore a proper subject of set-off. Plaintiff under the undisputed evidence was, therefore, not entitled to recover anything, and the general charge requested by defendant should have been given. It is unnecessary to discuss the assignments of error relating to the charges and admission of testimony on the question of agency. There was no error in the admission of the evidence to prove the existence of the partnership betAAfeen plaintiffs.
Reversed and remanded.