Frank v. Memphis & Charleston Railroad

52 Miss. 570 | Miss. | 1876

Chalmers, J.,

delivered the opinion of the court.

Plaintiffs shipped a lot of cotton by defendant’s railroad, from Holly Springs to New Orleans, via Memphis, Tennessee. There was unusual delay in the transportation, and the suit is brought to recover the loss in price consequent thereon. The delay occurred in the forwarding from Memphis by boat, and •defendant’s liability, if any, arises therefrom. The contract of •"shipment contemplated -a transfer of the cotton to a boat at Memphis, as it was well known that defendant’s railroad terminated at that point. There being no time of performance stipulated,'the contract was for a transportation' and delivery at New Orleans in a reasonable time, and hence there was an obligation' to use all reasonable diligence to secure transhipment at Memphis. Was this duty performed?

On the day of the arrival of the cotton' at Memphis the agent of the railroad contracted with the agent of the Memphis & St. Louis Packet Company for its shipment by their steamboat Eichmond, then ,descending from St. Louis, and expected to arrive that day in Memphis en route for New Orleans. The Eichmond was delayed several days by low water, and, when it did arrive, declined to take the cotton by reason of the stage of the river and its own tonnage. The cotton was forwarded by the first boat leaving thereafter. When the cotton finally1 reached New Orleans, more than a week after it should have done, the price had declined a half cent per pound.

It is shown that after the cotton arrived in Memphis, and its transportation on the Eichmond had been contracted for with the agent of that boat, the steamboat Magenta, then lying in port, offered to receive it, and was refused, and that the Magenta left in advance of the Eichmond, and, of course, several days in advance of the boat which eventually carried the cotton. Liability is sought to be fastened upon defendants by reason of their refusal to ship by the Magenta. We think that this claim is not well founded. A common carrier, whose contract contemplates a reshipment by other agencies than his own, is not imperatively bound to accept the first, opportunity that offers. Such an obligation would put the carrier at the mercy of the party offering. The carrier, who is an insurer as to ultimate delivery, is only bound to a delivery within a reasonable time, in the absence of any stipulation as to time, and consequently is only bound, as we have remarked, to the exercise of reasonable diligence in procuring transhipment by other agencies than his own.

The Memphis & St. Louis Packet Company is shown, not only to be a reliable company, but to have been the promptest and most reliable agency then furnishing transportation between Memphis and New Orleans. The contract with its agent had already been made, and its boat was hourly expected when the Magenta applied for the cotton.

., The Magenta sailed before the inability of the Eichmond to take the cotton was known, and before there was any reason to susjmct said inability. .

Under these circumstances, defendant being originally equally at. liberty to contract with either boat, and nothing having occurred previous to the departure of the Magenta to induce an apprehension that they had made a mistake, and the shipment actualty having been made by the first boat leaving after the Richmond refused to receive it, no liability can be imposed upon defendant by reason of what transpired after the Magenta’s departure. Its action was sufficiently prudent and prompt, tested by the circumstances existing at the time. It cannot be held liable for unforeseen emergencies arising thereafter. V. & M. R. R. Co. v. Ragsdale, 46 Miss., 476 ; Bennett v. Byram, 38 ib., 20; Redf. on Car., § 28.

There was no error in excluding from the jury proof as to the time within which cotton was transported from Holly Springs to New Orleans by the all rail route. Plaintiff voluntarily abandoned this route, and elected to make his shipment by the circuitous route through Memphis and down the river. To admit proof of the time within which the cotton could have been carried by the direct rail route, could only tend to confuse the jury by establishing a false standai'd.

The 3d instruction given for the defendant, and the 4th given for plaintiffs, are not altogether reconcilable, and neither, perhaps, fairly presents the facts as proved.

Taken as a whole, however, the instructions correctly enunciate the law of the case, and the verdict of the jury is correct.

Judgment affirmed.