85 So. 846 | Ala. Ct. App. | 1920
On the trial of this case the appellant offered to prove that the delay in the delivery of the lumber on which demurrage charges were founded was the result of the tortious or unlawful conduct of the plaintiff. The court declined to permit this proof, and this, in our opinion, was error, for the reason that it shows fault on the part of the plaintiff and therefore clearly within the principle announced by the Supreme Court in its opinion in this case. Furthermore, appellant was entitled to prove the number of cars, and the length of the delay in the delivery of the lumber to the consignee caused by the wrongful act of the plaintiff, and also that the demurrage charge at Cincinnati was reasonable.
We do not understand that the opinion of the Supreme Court in this case decides either of these questions. The granting of the certiorari by that court appears to have proceeded solely upon the proposition that this court erred in holding that appellant had the right to refuse to deliver the lumber unless the appellee should have given an indemnifying bond. Therefore the following expression in the original opinion of this court, to wit (ante, p. 158,
"Yet it was under no duty or obligation to deliver the lumber to plaintiff's consignee upon its offer to pay the freight without satisfactory indemnity"
— is modified to meet the opinion of the Supreme Court in this case.
For the errors in the ruling of the court on these questions, the judgment of the lower court is reversed, and the cause remanded.
Reversed and remanded.
