Holloman v. Southern Railway Co.
90 S.E. 292
N.C.
1916
Check Treatment
Walker, J.,

after stating the case: The plaintiff, in his’brief, states his contention as follows:

“The judgment in this case is clearly erroneous in adjudging that the defendant is entitled to recover storage charges, because:

“1. The defendant’s right to recover storage charges is dependent upon notice of the arrival of the shipment in accordance with the rules of the Corporation Commission; and there was no competent evidence to prove such notice.

“2. The defendant was estopped from asserting the right to claim storage charges.

“3. The court decided as a matter of law that the right to- charge storage had not been waived.”

*375 We are of the opinion that none of these several contentions should prevail. There was ample evidence that notice of the arrival of the machinery was promptly given. This was done by postal card properly addressed and mailed and presumed to have been received by the plaintiff, in the absence of evidence that itwas not. Model Mill Co. v. Webb, 164 N. C., 87; Trust Co. v. Bank, 166 N. C., 112. It has been held that where the consignee has actual notice that the goods have arrived and that the carrier is ready to deliver them at his depot, it dispenses with any formal written notice of the fact; nor could he demand it, 4 R. C. L., p. 755; Normile v. N. P. Railroad Co., 67 L. R. A., 271; but we do not decide as to this view, as we have held that sufficient notice was given. Plaintiff objected to oral evidence in regard to mailing the postal card announcing the arrival of the machinery; but this position is not tenable, as the mailing and contents of the postal card are matters collateral to the issue and not the subject-matter of the litigation. It was held in Ledford v. Emerson, 138 N. C., 502, that the rule excluding parol evidence as to the contents of a written instrument applies only in actions between parties to the writing, when the enforcement of any obligation created by it is substantially the cause of action. 1 Greenleaf on Ev., 275, 279; Pollock v. Wilcox, 68 N. C., 50; Reynolds v. Magness, 24 N. C., 26; Carden v. McConnell, 116 N. C., 875; Belding v. Archer, 131 N. C., 287; S. v. Credle, 91 N. C., 640; Jones v. Call, 93 N. C., 170. The last two cases related to notices, and it was there held that the rule requiring the production of the writing i'tself as the best proof of what it contains does not extend to mere notices, which persons are not expected to keep. 1 Greenleaf on Ev., sec. 561.

The other objections of the plaintiff, as to estoppel and waiver, are correlated and may be considered together. ’ If these questions are properly raised there is nothing for them to rest 'upon. The matter resolved itself into one of fact, whether the defendant had kept the machinery in its warehouse on storage, or held it, under an agreement with the plaintiff, until defendant could investigate the dispute between them, as to condition of the machinery and the liability therefor, and either accept or reject the plaintiff’s proposal as to payment for the damage, or until the matter was otherwise adjusted. The court, in a very clear and impartial statement of the contentions, submitted this question of fact to the jury, instructing them that if they found that the plaintiff’s version was the correct one, to answer the second and third issues against defendant. The jury seem to have found with the plaintiff, anyhow, at least to some extent, for the defendant was certainly entitled to charge storage from the time plaintiff received the Hooper letter declining to pay any damages, and the jury only allowed *376 for storage charges from that date. It was then the duty of plaintiff, as consignee, to take tbe machinery and sue for the damages, as defendant had declined to pay anything, and, therefore, there was nothing to adjust. Plaintiff is not in a position to say that the machinery was so badly damaged as’to be worthless, and, therefore, no obligation rested upon him to receive it, as he has recovered damages for injuries to it, and has brought this suit for the machinery itself. In his former action plaintiff’s position was that the machinery was only damaged and not practically destroyed, and, in this action, he takes the same position by asking for the possession of the property. He will not, therefore, be allowed to repudiate his former contention by now alleging that it had become worthless by defendant’s act and, therefore, he should not be charged for keeping it in storage. If it was his property, and worth anything, he is chargeable with storage after the defendant had refused to comply with his demand, and the jury so found under correct instructions. Plaintiff’s attitude would seem to fall within the very principle he invokes in his brief against the defendant: “Where a person has, with knowledge of the facts, acted or conducted himself in a particular manner, or asserted a particular claim, title, or right, he cannot afterwards assume a position inconsistent with such act, claim, or conduct to the prejudice of another.” 16 Cyc., p. 785. “A claim made or position taken in a former action or judicial proceeding will estop the party to make an inconsistent claim or take a conflicting position in a subsequent action or judicial proceeding to the prejudice of the adverse party, where the parties are the same and the same questions are involved.” 16 Cyc., p. 799; Williams v. Scott, 122 N. C., 545; Chard v. Warren, 122 N. C., 75; Brantley v. Kee, 58 N. C., 332; P. W. & R. Railroad Co. v. Howard, 54 U. S., 13; Davis v. Wakelee, 156 U. S., 680, 692. The contention is not open to the plaintiff that the defendant held the goods under an agreement for adjustment and an implied understanding that no charge for storage would be made/when it had received a letter from defendant assuming an adversary position towards his claim and positively refusing to pay it, and he had actually brought suit to recover damages upon the theory, of course, that the agreement as to an adjustment of the controversy was at an end. These are inconsistent positions. The plaintiff could not, in this way, benefit by the legitimate services of the defendant and not pay the reasonable value of them as fixed by the law and the defendant’s tariff schedules. 4 Ruling Case Law, p. 864, sec. 316, and pp. 868, 873. We have decided a case at this term, R. R. n. Iron Works, ante, 188, which fully sustains this view. Justice Iloke, referring to a dispute, where a shipment had been refused by the consignee, said *377 in that ease: “The consignee is entitled to collect reasonable storage charges until, in exercise of its rights under the law, the goods could be properly disposed of and both parties thereby relieved of further charge concerning them. . . . It is urged for defendant that no storage charges should be allowed after defendant had in express terms refused the shipment, as plaintiff could have proceeded immediately to enforce its lien; but the position cannot be approved. The railroad company should not be required to take the risk of such a course, but is entitled to proceed in an orderly way to enforce its right, and the authorities are to the effect that a common carrier is not relieved of all responsibility by refusal of the shipper to receive the freight, but is required to store and properly care for the goods as warehouseman under established rules of law.”

In that opinion attention is also called to the common-law rule giving a lien for storage, enforcible by'action in the courts, and the change effected by our statute, under which the carrier may sell the goods after the lapse of a given time. Revisal, secs. 2637, 2638. The Court also held, in the same case, that the carrier was entitled to recover for storage, “not for the entire time which had elapsed since the shipment was refused, but is restricted to the time when he could have relieved himself of the charge by sale pursuant to the statute.”

In respect to the time for which storage should be allowed, there is a distinction between that case (N. and S. R. R. Co. v. New Bern Iron Works) and this one. There the consignee rejected the goods altogether and out and out, while here the plaintiff claims the goods as his own in this very action, and having thus left his property in storage with the defendant, it is nothing but right, and it is the law, that he should pay the reasonable charges for keeping it. Compensation is allowed for storage because of the service rendered in taking care of the goods and the inconvenience to the warehouseman, and also the liability for their safe custody if proper care is not exercised. 4 R. C. L., sec. 316; Miller v. R. R., 88 Ga., 563, 572; R. R. v. Mfg. Co., 142 Ala., 322. It is said in the Miller case, supra: “It is well settled that the carrier, in addition to its compensation for the carriage of goods, has the right to charge for their storage and keeping, as a warehouseman, for whatever time they remain in its custody after reasonable opportunity has been afforded the owner to remove them. Hutchison Carriers. 378; Southwestern R. Co. v. Felder, 46 Ga., 433.” The carrier also has a lien for his freight and charges for storage, and may hold the goods until they are paid or properly tendered. 4 R. C. L., sec. 320. So that the defendant was entirely within its right in holding the goods, and the plaintiff was in the wrong for not taking them when it had the *378 opportunity to do so and reasonable time witbin wbicb to do it. Having failed in bis duty, be must pay tbe legal charges for storage. There is no point made in tbe brief as to tbe time for wbicb storage should be allowed, and, therefore, if there bad been any error in this respect, it would be waived under our rule.

There was no error in tbe rulings of tbe court.

No error.