129 Va. 418 | Va. | 1921
delivered the opinion of the court.
This was a notice of motion for judgment brought by J. W. Chandler against the director-general, operating the New York, Philadelphia and Norfolk Railroad. There was a verdict and judgment for the plaintiff, and the defendant assigns error.
On July 6, 1918, Chandler purchased from Louis Distributing Company, represented by and hereinafter called Louis, 199 barrels of Irish potatoes, supposed by Chandler to have been already loaded by Louis on a car of the N. Y., P. & N. Railroad at Eastville, Va. At the time of such purchase nothing had been done with reference to billing the car for shipment, and no freight receipt or bill of lading had been requested of or issued by the railroad company. Chandler instructed Louis to have the car shipped from Chandler at Eastville to Chandler at Chicago, thus naming Chandler as both consignor and consignee; and Louis procured from the agent at Eastville a bill of lading accordingly, which he delivered on the same da,y to Chandler, and the latter thereupon paid Louis $965.15, the agreed price of $4.85 per barrel for the 199 barrels covered by the contract of purchase. The bill of lading recited that the 199 barrels had been delivered to the railroad company. The plaintiff’s notice of motion expressly states
As a matter of fact, it developed that the goods recited in the bill of lading were never delivered to the carrier. This is not conceded by the plaintiff’s counsel, but it is, as we view the evidence, clearly proved. Although another car number was used in the notice of motion, there is no dispute about the fact that the claim is made on account of the contents of a certain car, known as S. A. L. No. 24053. It is shown that this car, containing 199 barrels Irish potatoes, had been already billed out by Louis on July 1, 1918, to another party at another destination, and had gone for
Having reached this conclusion, we need not consider the further contention of the defendant that even if the plaintiff could claim to be a third party holding the bill of lading as a bona fide assignee for value, the fact that no goods had actually been delivered to the carrier would still defeat the liability. The decisions of various State courts are in conflict upon this question. Sec. 4 R. C. L., pages 25, 26, sec.
Reversed.