34 Ga. App. 437 | Ga. Ct. App. | 1925
On November 11, 1922,. J. B. Harris delivered to the Atlantic Coast Line Eailroad Company at Kirkland, Georgia, a bale of cotton consigned to J. N. Mitchell & Company at Tifton, Georgia. The draft attached to the bill of lading was paid by the consignee, and upon presentation of said bill of lading to the defendant’s agent at Tifton, and the payment of the freight due on the shipment, the agent gave to the consignee an order for the cotton on the Tifton Compress, which was the agent of the railroad company for compressing cotton. The compress company gave to J. N. Mitchell & Company a “due bill for railroad orders only, and not for cotton.” In December, 1922, plaintiff’s agent took this “due bill” to the compress company and demanded the cotton. The agent of that company said the cotton had never been delivered to it, and that it did not have the cotton. Plaintiff’s agent then went to the agent of the railroad company and called for the cotton, stating that the compress company had never had it. Mr. Windham, plaintiff’s agent, testified as follows: “Mr. Al-friend (defendant’s agent) advised me to wait until he could make a search for the cotton, and he would see if he could not find the same and make delivery. I went with him to the local warehouses and the warehouse of the Tifton Cotton Mills. This search covered a period of several months, and he did not find the cotton. Mr.
The foregoing statement of the evidence sufficiently indicates
The defendant’s answer denied the material allegations of the petition, except the reception of the cotton by it, and the delivery of the cotton to its Tifton office, and set up that it was not liable, (1) for the reason that the plaintiff had made no claim in writing within six months after the delivery of the cotton, or within six months after a reasonable time for delivery had elapsed; and (2) because no suit was filed for the loss of the cotton within two years and one day after the delivery of the same, or within two years and one day after a reasonable time for delivery. The defendant further pleaded that the contract of carriage provided that it should be liable as at common law for any loss of said property or damage thereto, except as provided in said contract. The clause in the contract of carriage relied on by defendant is as follows: “Claims for loss, damage, or injury to property must be made in writing to the originating or delivering carrier or carriers issuing this bill of lading within six months after delivery of the property, . . or, in case of failure to make delivery, then within six months . . after a reasonable time for delivery has elapsed; provided that if such loss, damage, or injury was due to delay or damage while being loaded or unloaded, or damaged in transit by carelessness or negligence, then no notice of claim nor filing of claim shall be required as a condition precedent to recovery. Suits for loss, damage, injury, or delay shall be instituted only within two years and one day after delivery of the property, or in case of failure to make delivery, then within two years and one day after a reasonable time for delivery has elapsed: provided, that in case the claim on which suit is based was made in writing within six months, . . suit shall be instituted not later than two years and one day after notice in writing is given by the carrier to the claimant that the carrier has disallowed the claim or any part or parts thereof specified in the notice.”
The case of Southern Express Co. v. Sinclair, 130 Ga. 372 (60 S. E. 849), which is strongly relied upon by defendant in error, is quite different in its facts from the case at bar. In that case the evidence “showed without conflict that the express company was not in possession of the property at the time the suit was •brought or the demand made for its delivery.” The consignee
2. It appears that the feature of the defense based upon failure to give timely written notice and failure to sue within the time specified in the bill of lading depends upon the question of conversion. In Ayash v. Georgia Show-Case Co., 17 Ga. App. 467 (2 a) (87 S. E. 689), it was said: “Any special terms or stipulations in the contract that might affect the rights of the parties if the suit had been brought to' enforce the contract can not be considered in a trover suit.” Again, in Merchants & Miners Transportation Co. v. Moore, it was said: “A suit in trover is not an action for loss or damage to property, but an action for conversion of‘property. The conversion on the part of the carrier is an abandonment by it of its contract of shipment. It can not repudiate this contract and then hold the shipper to its terms.” We think also that under the facts of this case the jury should be allowed
Judgment reversed.