59 So. 673 | Ala. Ct. App. | 1911
1. This suit was brought by appellee against appellant for recovery of damages
2. The facts are that the Pensacola Trading Company is a corporation, and OAvns a line of steamers connecting Avith the Louisville & Nashville Railroad Company at Pensacola, Fla., and its steamers are engaged in the business of transporting freight to and from Pensacola, Fla., and Liverpool, England. Funch, Ed-ye & Co., Avith headquarters in New York, were the general agents of said Pensacola Trading Company. Elmore, Quillian & Co. were cotton factors, doing business in Montgomery, Ala., and, on or about the 28th day of May, 1908, they sold to appellee, whose place of business is Liverpool, England, and who does business under the name of Williams & Co., 100 bales of cotton, and on that day appellee wired them to hurry forward the cotton to Liverpool. On June 1st, acting under the instructions received from appellee, Elmore, Quillian & Co., applied to R. H. Davis, booking agent of the appellant for foreign freight at Montgomery,
Appellant owned two tracks from the Atlantic Compress plant at Pensacola to the wharves at Pensacola, and operated trains over such tracks. The distance
The steamship Saltmarsh commenced loading for Liverpool at the wharves of appellant at Pensacola on the 12th day of June, and finished loading for Liverpool on the 23d day of June. The cotton remained at the Atlantic Compress' Company’s plant until June 17th, five days after the Saltmarsh had commenced her loading. The 100 bales of cotton were tendered to the vessel by the appellant in the following manner: A list of all freight, including this 100 bales, engaged for the steamer was made out by appellant and delivered to the master of the vessel, and on June 17th the 100 bales of cotton were switched by appellant from the compress company’s plant to appellant’s wharf, where the Saltmarsh was loading. The master of the Saltmarsh, it appears, had the right, under the custom of the steamer, to say what freight he would take or refuse to- take upon any particular trip. In the present instance, certain cotton, billets, shuttle blocks, and other freight which appellant had contracted to be shipped by the Saltmarsh on this particular trip, and which contracts were made after June 1st, were accepted by the master and carried to Liverpool, but the steamer failed to receive the 100 bales of cotton in controversy, and the same was carried to Liverpool about one month later by another steamer of the steamship company by name The Vibina, and by reason of the
There are certain stipulations in the bill of lading which was delivered by appellant to appellee on June 11th which provide that appellant shall, on account of the rate of freight therein named, only be liable for damages occurring to freight while on its own line, and that its liability as a common carrier ceases upon the tendering of freight to its connecting carrier. Appellant claims that as it tendered to the Saltmarsh on the 17th day of June, six days before the steamer finished loading, it had performed all of the duties which it owed as a common carrier to appellee in the premises, and that it had a right, under a stipulation in the bill of lading, to ship the cotton to Liverpool by the next steamer which left Pensacola for Liverpool, viz., The Yibina, and that, having met the letter of its contract as set out in its bill of lading, appellee was not entitled to recover.
The appellee had a binding contract with appellant on June 1st, by virtue of the telegrams which are above set out, to ship the 100 bales of cotton by the Salt-marsh on its return to Liverpool- in June from Pensacola. The facts in this case are different from those where a shipper merely delivers goods to a common carrier for shipment to a point beyond its destination through the medium of its connecting carriers in the ordinary course of business. In the present case there was, in effect, a legal, specific agreement on the part of appellant to reserve the shipping space in the steamer Saltmarsh for 100 bales of cotton, to be carried by said steamer to Liverpool on the 2Sd day of June, and to carry said cotton by said steamer on said - trip, and the fact that the master of the Saltmarsh failed or refused to transport the cotton furnishes appellant with
This case is similar in all of the legal questions involved- to the case of the Northern Pacific Railroad Company v. American Trading Company, which is referred to by the counsel for the appellee in his brief. In that case a contract of shipment was made by the receivers of a railroad company to ship a lot of lead from the city of New York over the line of the railroad to Tacoma, Wash., and by a certain steamer from Tacoma to Yokohoma, Japan. The contract in that case was made prior to the delivery of the lead to the railroad company, and after the lead was delivered to the railroad company a bill of lading was delivered by the railroad company, similar in all respects to the bill of lading in this case, to the shippers of the lead. The lead reached Tacoma in time for the steamer, and was actually loaded on the steamer, but as China and Japan were then engaged in war with each other, and as the authorities of the United States government at Tacoma were in doubt as to whether the lead was or was not a contrabrand of war, the collector of the port refused to clear the vessel while the lead was on board, and the master unloaded the lead, and the next day sailed without it. The railroad company forwarded the lead by the next vessel but in the mean time lead had declined, and the receivers of the railroad company were held liable under their contract of shipment. In that case the Supreme Court of the United States used the following language:
“It is urged that the bill of lading constitutes the sole contract, but there was a plain, valid contract ex-*629 i sting between the parties before the lead was shipped, and before any bill of lading was issued. That special contract was to forward the lead by the steamship leaving Tacoma on the 30th day of October. The .next day after the lead was shipped at Newark a bill of lading was delivered to one of the clerks of the trading company, and that bill of lading contains the absolutely inconsistent statement that the carrier, is not to be liable for any loss not occurring on its own road, and that the contract, as executed, is accom.plished and all liability thereunder terminates upon the delivery of the property to the steamship. It is . said that the trading company, by receiving this bill of lading and obtaining money on it as the representative of the property therein described, has acquiesced .in the total abolition of the special contract the company made with Fitch, and has agreed that the railroad company shall be under no liability after the delivery of the lead to the steamship. We regard it as entirely clear that no such effacement of the original contract was meant by the receipt of the bill of lading. The railroad company had no power alone to alter that contract, and it could not alter it by simply issuing a bill of lading, unless the other party assented to its conditions, and thereby made a new and different contract.” — 195 U. S. 439, 25 Sup. Ct. 84, 49 L. Ed. 269.
It is- true that in the above cases the lead had actually been delivered to the railroad- company- before the issuance of the bill of lading, and in the present case the cotton seems to have been • delivered to appellant contemporaneously with the delivery by the appellant to appellee of the bill of lading. In the above case, as in the present case, the bills of lading were not read by the parties to whom they were delivered, and the fact that the bill of lading in this case was deliv
The hill of lading recites that it ivas accepted in consideration of the special rate which was given appellee. Appellee had already made a valid contract Avith appellant for the shipment of the cotton to Liverpool by the Saltmarsh at an agreed rate of compensation, and the freight rate set out in the bill of lading is identical Avith the freight rate Avhich had been previously agreed upon by the parties when the real contract of shipment was made. The truth is that the delivery of the cotton to appellant Avas made under the contract AA7hich had previously been entered into by the parties, without regard to the issuance of the bill of lading; and the issuance of the bill of lading was merely in accordance Avith custom, for the convenience of appellee, and as an evidence of title to and right to receipt for the cotton when it reached Liverpool. Under his contract, appellee, when he delivered the cotton to appellant, was entitled to its shipment to Liverpool by the steamer Saltmarsh in June, 1910, and the delivery of the cotton to appellant was under the contract and in anticipation that it would be in all things complied with.
Under the facts in the present case, we, as did the Supreme Court of the United States in.the above case of the Northern Pacific R. R. Co. v. American Trading Co., refuse to hold that appellee, in accepting the bill of lading, thereby consented to the complete alteration of his original contract, and without any consideration whatever, agreed to release the railroad company from all liability on that contract, and to take in its stead the reduced liability provided for in the bill of lading.
The judgment of the court below is affirmed.
Affirmed.
On Application for Rehearing.
As there was a judgment in this case against the appellant, we treated, in the above opinion, all the material inferences which could legally be drawn from the evidence in favor of the appellee as established facts. We therefore came to the conclusion that on June 1st the appellee, through his authorized agent in Montgomery, made with the appellant, through its agent in
It may be, as insisted by appellant in its application for a rehearing, that the expression “B 913” contained in the above telegrams referred to a bill of lading subsequently to be issued, but if so, the evidence, all of which was agreed upon, does not indicate it. A railroad man, reading the telegrams, might so understand it, but a man of ordinary intelligence not acquainted with customs among railroads would not. The ambiguity could have been explained by evidence if the telegrams meant what appellant claims for them, but it failed to offer any evidence on that subject. — Barron v. M. & O. R. S. Co., 2 Ala. App. 555, 56 South. 862.
The application for a rehearing is overruled.
dtd GRAFFENRIED, J. — 1. The only question presented to us on this appeal — and it was a.question.to which we gave much consideration — was whether,
Hardship does not make shipwreck of principle; but there is no rule in any enlightened jurisprudence through which injustice can be legalized; and, taking into consideration the situation of the parties, the evident purpose and importance of the telegraphic correspondence, the time and the manner of the delivery of the bill of lading, and the character of its stipulations, we are unable to say that the minds of the appellee and appellant met on the subject under discussion when the bill of lading was delivered, or, in fact, under the peculiar circumstances of this case, that the delivery and acceptance of the bill of lading was intended by either of the parties as an effacement of their previous agreement.
In the case of L. & N. R. R. Co. v. Meyer, 78 Ala. 597, Mr. Justice Stone said: “Possibly if contemporaneously with the delivery of the goods to the railroad, he (the shipper) had received the bill of lading containing such stipulation (a stipulation limiting the carrier’s liability to its own road), he would be conclusively presumed to have read it, and to have acquiesced in it. — Goetter v. Pickett, 61 Ala. 387; Dawson v. Burrus, 73 Ala. 111. And this would have been no hardship; for he would have had it in his power to reject .the terms. Failing to read the contract he was accepting might he fairly interpreted as an expression of full confidence and an agreement to ac
Of course, the general rule announced in Ala. G. S. R. R. Co. v. Thomas, 83 Ala. 343, 3 South. 802, and in Jones v. Cincinnati, Selma & Motile R. R. Co., 89
That the doctrine last above quoted is simply the application by the Supreme Court to bills of lading of the well-known • proposition that, in the absence of fraud or mistake, the terms of a written instrument cannot be varied by parol evidence, and nothing more, is apparent from the facts of and the real questions involved in the two cases last cited, as well as by the language of the- Supreme Court as applied to the facts in the case of A. G. S. R. R. Co. v. Norris, 167 Ala. 311, 52 South. 891, which was the last deliverance of the Supreme Court upon the subject until it handed down the opinion in the present case. In the Norris Gasc, supra, a shipper of freight sued a common carrier of goods for damages for a failure to deliver, and
The above broad language of the Supreme Court was used in a case in which the bill of lading was delivered by the carrier to the shipper contemporaneously with the acceptance by the carrier of the freight, and in that case no question of fraud or mistake was involved. It is evident, from the above language, applied to the facts then under consideration, that the Supreme Court has never intended to put, or in fact put, bills of lading upon a pedestal, or placed them in a class to themselves, but that the court intended to group them with all other written ' evidences of con
While, as a general rule, a contract, complete in all its parts, Avhich relates to an executory agreement, and which is delivered by one of the parties to the other party, and Avhich is retained by such party, will be conclusively presumed to contain within itself the sole memorial of the contract (Cornish v. Suydam, 99 Ala. 629, 13 South. 118; Mylin v. King, 139 Ala. 319, 35 South. 998), nevertheless it is also a Avell-recognized rule, that Avhere several writings are made as part of one transaction, they will be read together, each he
In this case the telegrams introduced in evidence contained the significant words “contract B 913,” and the bill of lading, evidently referring to the telegrams, also contains the same words “contract B 913.” The telegrams and the bill of lading therefore, certainly by numbers, expressly and unequivocally refer to each other.' Indeed, on the application to this court for a rehearing, the argument was strongly pressed by appellant that even before the bill of lading was issued it must have been within the contemplation of the parties, on account of the use of the words and figures “contract B 913” in the telegrams, that a bill of lading was afterivards to be issued and this court expressed the opinion that, before the issuance of the bill of lading, a layman would probably not have so understood. When, however, the bill of lading icas issued, it referred directly, at the head of it, to the “contract B 913,” which was, as above stated, the number of. the contract entered into by the telegraphic correspondence and there seemed to us to be no escape from the conclusion that the bill of lading, when issued, if forming a part of the contract of shipment, adopted the telegrams as a part of it to the same extent as if they had been written in the body of the bill of lading itself. Acting upon this assumption, we were forced to the conclusion that if the telegraphic correspondence was not in fact
It cannot be denied that the telegrams show that the parties intended the cotton to be shipped by the Salt-marsh on its June sailing. The reason for the telegrams was that the parties desired a shipment of the cotton on that vessel on its June sailing, and by no other vessel on any other sailing. If, therefore, all the writings touching this matter and referring to each other are to be construed together — and we saw no Avay to escape, at least, that conclusion, if, indeed, under the peculiar circumstances, the bill of lading Avas to be treated as anything more than a mere receipt— then the telegrams not only formed a part of the writing in the bill of lading, but one of the most important parts of its Avriting, and fixed conclusively the evidence of the intent on the part of the Louisville & Nashville Railroad Company to carry out the agreement made on June 2d to have the cotton carried to Liverpool by the Saltmarsh on its June sailing. — 2 Mayfield’s Dig. p. 614, § 114.
Taking into consideration the situation and evident intent of the parties when, by telegraphic correspondence, a definite agreement Avas made for the shipment of a designated amount of cotton by a designated steamer plying, not between ports on some inland river, but between ports on different continents and separated by the Atlantic Ocean; that the delivery of the cotton, under the telegraphic correspondence, was to be made to appellant, not for transportation to the designated seaport, Pensacola, but at Pensaeojla, the terminus,
We were of the opinion that the facts of this case placed it under the rule declared in the case of Northern Pacific R. R. Co. v. American Trading Co., 195 U. S. 439, 25 Sup. Ct. 84, 49 L. Ed. 269. It is true that in that case the bill of lading was issued after the lead was delivered; but that fact was not advanced by the Supreme Court of the United States as the controlling fact upon which it based its opinion in that case. It was one of the reasons) but not the only reason, advanced by that court as influencing it in holding that the bill of lading was not to be treated, under the facts of that case, as the only evidence of the contract of shipment.
As we were confronted with facts which rendered it difficult to determine which of two well-established, but opposite, rules of law should be applied to them, we resolved all doubt that may have existed in our minds in favor of that rule which seemed to carry into effect the real intent of all the parties, as gath
While this case was tried upon an agreed statement of facts, the contract, as construed by the Supreme Court, was made in Florida, and was to be executed in England. While we might indulge the presumption that the laws of those countries are the same as our own, this case was evidently tried in the court below — as it was argued and considered here — as an Alabama contract; and it may be that, upon another trial, by proper amendment of the pleadings, the agreed statement of facts may he supplemented by evidence establishing the laws of Florida and, if pertinent, the laws of England as to what the contract of affreightment, under such laws, if, indeed, they differ from our own, were. — Harrison v. Southern Railway Co., 119 Ala. 539, 24 South. 552, 43 L. R. A. 385, 72 Am. St. Rep. 936.
In the case of Alabama & Florida R. R. Co. v. Watson, 42 Ala. 74, the Supreme Court held that an agreement between the parties to a suit that “every matter and thing which could be legally pleaded in bar should he deemed as fully pleaded,” etc., was merely a plea
As the Supreme Court has held that the bill of lading in this case was the sole evidence of the contract of affreightment, and as it was a Florida, and not an Alabama, contract, we are of the opinion that, in this case, the judgment of the court below should he reversed, and the cause remanded to the lower court for further proceedings in that court.
Reversed and remanded.