George v. Louisville & Nashville Railroad

40 So. 486 | Miss. | 1906

Whitfield, C. J.,

delivered the opinion of the court.

The point on which the propriety of the peremptory instruction must turn, and which point is the chief, if not the only, one much stressed by appellant, is whether the appellee was entitled to tbe surrebder of tbe bills of lading properly indorsed before tbe delivery of the property atPortChalmette for Sbipside delivery. Appellant quotes from tbe bills of lading tbe following: “If tbe word ‘order’ is written hereon, immediately before or after tbe name of tbe party to whose order tbe property is consigned, without any condition or limitation other than tbe name of tbe party to be notified of tbe arrival of tbe property, tbe surrender of this bill of lading properly indorsed shall be required before tbe delivery of tbe property at destination.” But tbe bill of lading contains on its face tbe following other condition: “The shipper may elect to accept tbe conditions printed or written on tbe face and back hereof, and tbe reduced rates applying thereunder, or may, as provided below, require tbe carriage of tbe property at carrier’s liability. If tbe shipper elects not to accept tbe said reduced rates and conditions, bis failure to sign tbe acceptance clause provided below will be accepted as notice of such intention, and tbe property will be at the carrier’s liability, limited only as provided by common law, by tbe laws of tbe "United States, and of tbe several states, in so far as they may apply. Property so carried will be charged twenty (20) per cent higher (subject to a minimum increase of one (1) per cent per hundred pounds) than if shipped subject to tbe conditions printed or written on tbe back and face thereof.”

Tbe evidence shows that this acceptance clause was in no instance signed by tbe shipper as owner, or agent for tbe owner, and that neither tbe consignee, nor any one for him, signed said clause. There is no proof that tbe shipment was made at a reduced freight rate. Tbe rate charged was the through rate established as per tbe answer of tbe appellee to tbe twentieth interrogatory propounded to it under tbe statute, and tbe clause relied on, therefore, as above set out, is no part of tbe contract in this case. In addition to this, tbe appellant duly notified tbe appellee that Port Obalmette was tbe point of destination, and consequently tbe appellee bad no right to tbe bills of lading shore of that point. “Sbipside, New Orleans, Louisiana,” was tbe point of destination, which means one of the ports'of New Orleans. The evidence shows that Port Chalmette was a port of New Orleans, and the proper place for the delivery, and that appellee was so notified. The appellant certainly had such interest in the goods and ladings as to authorize him to direct at what port he would have delivery made. Exporters who would want to buy the goods would want to buy them in port — not in the yards of the Louisville & Nashville Railroad Company in New Orleans, but in port, where, whenever ships were ready, the goods could be loaded into the ships. Appellee would have been abundantly protected in carrying the cotton-seed meal to Port Ohalmetto, since no purchaser from the appellant, that having been done, could rightfully have demanded the property being carried to any other port. Appellee should have promptly delivered the property to the connecting carrier, the New Orleans Belt & Terminal Company. Appellant was legally bound to accept and pay for the meal. It was consigned to him, a draft drawn with bills of lading attached, and he had a right to have it carried to its destination, where he could resell, in accordance with commercial usage. Appellee is not in an attitude to insist that appellant had not paid for the stuff, by cashing the drafts drawn on him, at the time he demanded the meal should be sent -to Port Chalmette, when no such point was made by appellee below. What appellee demanded then, and insists on now, was and is the actual surrender of the bills of lading before it would let the meal go to Port Chalmette, whether paid for or not.

In addition to all this, it may further be said that there is no evidence of any custom, such as contended for by appellee, ever having been brought home to the knowledge of the appellant. Nor does the evidence disclose any published rule calling the attention of shippers to such custom. George testified that he knew of no such custom, and that he had been in the business of buying and selling cotton-seed meal for twelve or fifteen years, and that prior to the shipment of the meal in controversy, he had handled to Port Chalmette, through the New Orleans Belt & Terminal Company, many car loads of meal, the bills of lading reading “Shipper’s order notify” being handled exactly as were the bills of lading in this case, and that during all these years no demand had ever been made on him, by any railroad company in New Orleans, to surrender the hills of lading and pay freight charges before the arrival of the meal, except the demand made in this case by the appellee. He also testified that a part of the meal, purchased about the same time, went straight through over the New Orleans & Northeastern Railroad Company to Port Chalmette without any such demand for the surrender of the bills of lading. The contention of the appellee, therefore, on this point, is manifestly untenable.

In addition to all this, it m ay finally be observed that appellee admitted that the unloading charge had been collected, and we thiulr the court should have allowed the evidence offered to show that George had prepaid this charge.

Reversed and remanded.