| Ala. | Nov 15, 1896
The complaint as amended conforms substantially to the form of complaint prescribed by the Code for an action against a common carrier for the failure to deliver goods entrusted to him for transportation, (Code of 1886, p. 793, Form 15); and by the mandate of the statute must be deemed sufficient.-Code of 1886, § 2665. The complaint not only conforms to the statutory form, but passes beyond it, embodying an averment that the contract of shipment was made with the plaintiff and for Ms benefit.
The general rule is, that prima facie a bill of lading operates a transfer to the consignee of the title to the goods shipped; and in the absence of evidence removing the presumption, an action against the carrier for failure to deliver, or for the loss or injury to the goods while in his possession, will lie only at the suit of the consignee. 1 Brick. Dig. 29, § 169; Robinson v. Pogue, 86 Ala. 257" court="Ala." date_filed="1888-12-15" href="https://app.midpage.ai/document/robinson--ledyard-v-pogue--son-6513371?utm_source=webapp" opinion_id="6513371">86 Ala. 257; Capehart v. Furman, 103 Ala. 671" court="Ala." date_filed="1893-11-15" href="https://app.midpage.ai/document/capehart-v-furman-farm-improvement-co-6515767?utm_source=webapp" opinion_id="6515767">103 Ala. 671. But if the consignee is not in fact the owner of the goods ; if he is the mere agent or factor of the consignor; and in the course of
It was wholly immaterial in any aspect of the case, whether the plaintiff had paid, or offered to pay, or whether the defendant had claimed, demanded or looked to him for payment of, the freight. As a condition to the acceptance of the bark for transportation, the defendant could have demanded the payment of the freight: but having accepted the bark without such demand, from liability the defendant cannot be absolved, by not claiming or demanding payment of freight from. the shipper. — Hutchinson on Carriers, §§ 116-17. The part of the first special plea which was stricken out presented an immaterial issue, in which the plaintiff properly refused to. join.
If there was error in the striking out. the other special pleas, it was error without injury. It is affirmatively shown, that under the general issue, the defendant had the full benefit of the real matter of defense these pleas were intended to present; and that was whether the plaintiff had such title to or interest in the bark as would entitle him to maintain the action. The contention of the appellant, that the pleas were proved, cannot be supported. The evidence, and the proper inferences from it, we may say, is without conflict; that the plaintiff bought the bark from Harvey, and was to pay him the price when sales were made by the consignees, and that partial payments of the price had been made. The plaintiff was the general owner; the consignees were his agents to pay the freight at the point of destination, and to make sales, remitting to him the proceeds less the freight. The facts remove the presumption that title to the bark, or any interest in it, resided in the consignees .
It is unnecessary to comment on the charges in detail. Charge No 2 was properly refused. The fact that Harvey paid Armstrong cannot affect plaintiff’s right to recover, especially as it appears that upon making payment Armstrong drew an order on the plaintiff in favor of Harvey for the amount, which plaintiff accepted, payable out of the proceeds of the property. It was a mere substitution of one creditor for another. All the other charges asserted propositions in conflict with the principles we have announced, and were properly refused.
Affirmed,