71 S.E. 339 | N.C. | 1911
The facts are sufficiently stated in the opinion of Mr. Justice Walker. This action was brought to recover a penalty under Revisal, sec. 2632, for delay by defendant in transporting a car load of chestnut wood from Glenwood, N.C. to the United States Leather Company at Old Fort, N.C. The shipment was made under an open bill of lading, but the contract between the plaintiff and the consignee, United States Leather Company, provided that the wood was not to be paid for until it had been "received, inspected and weighed" at *193 Old Fort, and of this stipulation the defendant had no notice. By consent of the parties, the judge found the facts and held that plaintiff was not the "party aggrieved," within the meaning of the statute. Judgment was rendered dismissing the action, and plaintiff appealed.
If the stipulation as to "receiving, inspecting and weighing" entitled the plaintiff, as the "party aggrieved," to sue for the penalty, it can make no difference that the defendant had no notice of it. Rollins v.R. R.,
We might pass upon the other question raised in the brief and argument before us, if the court had clearly found all the facts required for a determination of the amount of defendant's liability. The judgment of the court below dismissing the action is reversed. So far as we can now see, the plaintiff is entitled to recover the penalty, and the *195 amount of his recovery will depend upon the facts as found by the jury, or by the court if the parties so agree. We merely declare there was error in the ruling of the court, and set aside the judgment (239) of nonsuit, or judgment against the plaintiff, and order a new trial of the case in accordance with the principle herein stated.
Having decided that the plaintiff is entitled to the penalty upon the facts relating to the liability as they now appear, it may be that the parties can settle without further litigation, and will prefer that course, there being a very small difference in amount between them.
Error.
Cited: Tilley v. R. R.,