137 Va. 207 | Va. | 1923
after making the foregoing statement, delivered the following opinion of the court:
The decision of the ease turns upon a single question, namely:
1. Was notice from the terminal carrier, the Erie Railroad, to the plaintiff, the consignor, of the fact that the goods would be, or were, stored in the public warehouse, where they were in fact stored on September 11, 1920, essential in order to terminate the contract of carriage?
The question must be answered in the negative.
The shipment being an interstate shipment, the liability upon the defendant (except as forwarder), if
In the instant case, the shipment was interstate and the bill of lading issued by the defendant, the initial carrier, expressly embraced the provisions of interstate tariffs, which permitted reconsignment and change of destination at any time before the contract of carriage was completed. So that, if at the time the plaintiff gave to the defendant the order of reconsignment and of change of destination of the goods to be made at Cleveland, the original contract of carriage had not been completed, the compliance with that order, would not have abrogated the original contract, but would have been in conformity therewith, and the defendant would have been liable for the conversion of the goods if it wrongfully refused or failed to comply with such order (Atchison, etc., R. Co. v. Schriver, 72 Kan. 550, 84 Pac. 119, 4 L. R. A. [N. S.] 1056), as, for example, if it refused to comply with the order except upon payment of excessive storage charges. 4 R. C. L. 837; 10 C. J. 273-4. As held in the case next above cited, such an order in such a situation “is equivalent to a demand for delivery.”
But, it is firmly settled that the entire transportation of an interstate shipment is completed, and that there is no longer any liability upon the initial carrier for a conversion of the goods, when a change of the relationship of the terminal carrier from that of carrier
Now the instant case is different from N. Y., P. & N. R. Co. v. Chandler, supra (129 Va. 695, 106 S. E. 684), and from many other eases involving order notify bills of lading found in the books, in this: The plaintiff, owner, it will be observed, is not, in the instant ease, named as consignee in the bill of lading. The goods were “consigned to the order of,” not to the plaintiff owner. Under the direction in the bill of lading, “notify Penn Square Body Company, at Cleveland, Ohio,” the terminal carrier at Cleveland was authorized to consider such company as the consignee
Whether the defendant is liable to the plaintiff for damages for default in the discharge of its duty to the plaintiff, in the relationship of forwarder, is not a question which is involved in the case as presented by the pleadings and assignments of error before us. Hence, we do not pass upon that question in any way, affirmatively or negatively.
Service order No. 1, offered in evidence by the plaintiff, is relied on for the plaintiff as requiring notice of the diversion of the shipment to be given to it; but even if otherwise applicable (which we do not decide), that order did not require any notice of the diversion of the shipment over the line of the Erie Railroad, which was made at Deepwater, to be given to the plaintiff, consignor. That order required notice of the diversion to be given only to the consignee, in the eases to which
The judgment under review will be affirmed, with provision in our order, however, to the effect that such judgment shall in no way prejudice the plaintiff, nor shall what we have said above in any way prejudice the plaintiff or defendant, in any proceeding the plaintiff may institute, if so advised, against the defendant for damages for default or breach of duty as forwarder.
' Affirmed.