105 Ark. 415 | Ark. | 1912
(after stating the facts). Counsel for appellants first insist that the effect of the agreement made with Mr. Carstarphen, as detailed in the statement of facts, obviated the necessity of them ordering cars for the shipment of their peaches, and that it was the duty of the railway company to have the cars there at all times for the shipment of peaches, whether ordered by appellants or not. We do not agree with them in this contention. We have held that our statute requiring carriers to furnish, without discrimination or delay, sufficient facilities for the carriage of freight is not intended to make the duty of carriers to furnish transportation facilities an absolute one, but is simply declaratory of one of the requirements of the common law, and therefore does not require the carrier to provide in advance for any unprecedented and unexpected rush of business. St. Louis S. W. Ry. Co. v. Clay County Gin Co., 77 Ark. 357.
In the case of Mauldin v. Seaboard Air Line Ry. Co., 73 S. C. 9, 52 S. E. 677, it is held that the difference between the obligation to furnish cars imposed by law and that imposed by a contract to furnish them is that the contractual obligation is more onerous; for, while a railroad is not liable for nonperformance of its legal obligations where it has a reasonable excuse to furnish cars as such heavy and unprecedented traffic, it is not relieved from the obligation to perform its contracts by unexpected emergencies in its business.
In 4 Elliott on Railroads, (2 ed.), § 1473, the author states the difference as follows: “Where a railroad company expressly undertakes by special contract to furnish cars at a specified time, it is bound to perform its contract. Where there is no express contract, then, as we have seen, an unusual press of business may excuse the company for a failure to furnish cars; but where there is an express contract, the rule is that a press of business, although unusual and unexpected, will not relieve the company from liability. Where there is an express contract, of the character above indicated, to furnish cars at a specified time, the fact that an unavoidable accident prevents the company from performing its contract will not exonerate it from liability to a shipper who suffers an injury because of the failure to perform the contract.” See also Midland Valley R. Co. v. Hoffman Coal Co., 91 Ark. 180.
In view of these principles, we think the effect of the contract, as stated in the statement of facts, was to preclude the railroad company from interposing as a defense for failing to furnish cars that it was prevented from doing so by heavy and unprecedented traffic or other 'unavoidable casualties, and that the contract did not relieve the shipper of the obligation of ordering cars for a specified time and place as required by law.
It is next contended by counsel for appellants that when the time for the shipment of the peaches was at hand R. C. Cumbie made an agreement for himself and all others who intended to ship peaches from the locality that he was to order cars orally; that if the order was made on one afternoon the cars were to be sent out on the first train the next morning, or in default of that on the afternoon train. Such a contract would be void for want of mutuality as to all parties except Cumbie and those who' had authorized him to make such contract for them. It is well settled that a shipper’s order calling for a specified number of cars for a specified day when accepted by a common carrier constitutes a contract binding the carrier to furnish the cars and the shipper to furnish the goods wherewith to load the cars. 2 Hutchinson on Carriers, (3 ed.), § 495; Railway Co. v. Bundy, 97 Ill. App. 202.
In the present cases there is no testimony that appellants authorized R. C. Cumbie to make such a contract for them. Let us suppose that Cumbie had ordered a given number of cars for a designated day and the railroad had furnished them in compliance with the order: Can it be said that the railroad company would have had an action ¿gainst these appellants if a sufficient number of peaches had not been placed in the cars for shipment to fill them? There can be no doubt but that this question must be answered in the negative. A request to a carrier for cars carries with it by implication of law an agreement to make use of the cars if the request is complied with and, a correlative promise to pay the railroad company whatever loss might be incurred by it in the event the cars were not used. The contract must be sufficiently definite to bind the carrier to furnish the cars and the shipper to use the cars when furnished. Under the facts of these cases, as detailed by appellants, if cars ordered by R. C. Cumbie had been furnished by the railroad company and had not been used, the railroad company would have had a cause of action against R. C. Cumbie, but none against these appellants, because they did not authorize him to order cars for them, and the jury could not have inferred a promise by them to do something which they had not agreed to do.
Indeed, all of the appellants except N. G. Cumbie expressly stated that they did not order any cars on the day in question, nor authorize any one else to order cars for them. They had brought their peaches to the town of Greenwood, and, failing to find a local market for them, then carried them to the depot, and' offered them for shipment.
Therefore, the judgment will be affirmed.