51 So. 956 | Ala. | 1910
— Appellee sued the lumber in tro- • ver for the conversion of certain lumber or timber which is minutely described in the complaint. The facts of the case are substantially as follows: The plaintiff shipped two cars of lumber over defendant’s road from some point in Mississippi to Mobile, Ala. These cars in which the lumber was shipped were cars of the defendant rail
Without more, this, of course, would render defendant liable to plaintiff in action of trover for the car of lumber so wrongfully delivered. This court, in the case of L & N. R. R. Co. v. Barkhouse, 100 Ala.544, 13 South. 534, speaking through McClellan, J., said: “A bill of lading does not pass by delivery, and the possession of it by one other than the consignee, without indorsement, will not’ authorize or justify the carrier in delivering the consignment to such person. — Hutchinson on Carriers, § 344; 2 Am. & Eng. Encyc. of Law, 241. The obligation to deliver only to the party having title to the bill of lading is imposed by law on the carrier, and is absolute. Any custom of a particular carrier, or of carriers generally at a particular place, to make deliveries to persons merely in possession of the bill of lading, is a bad custom, and cannot be adduced in evidence to exempt such carrier or carriers from liability for deliveries to wrong persons. Trover is the proper action, where there has been a delivery of property by a common carrier to a person not entitled to it, by mistake. Such wrongful delivery is a conversion. — Bullard v. Young, 3 Stew. 46; Ala & Tenn. River R. R. Co v. Kidd, 35 Ala. 209.” For a custom or usage to vary the implications of a contract, it must be established and acted upon generally and sufficiently long to raise a presumption of its knowledge, and it can never vary the expressed stipulations of a contract. It is only a reasonable custom, not opposed to law, which is admissible to aid in the interpretation of contracts.. Unfair and unrighteous ones the law should not allow to exist
The defendant attempted to avoid liability by setting up a 'special defense, as shown by plea No. 2 as amended. (The reporter will set out this plea in the statement of facts.) Demurrers were interposed to this plea, and were overruled, and the trial was had upon it and that of the general issue. It is unnessary for us to pass upon the sufficiency of this plea, because it was ruled sufficient by the trial court, which ruling was in favor of appellant. If the plea was sufficient, and not subject to the demurrers interposed, and we will so treat it, for reasons before assigned, it is, as was intimated by this court on the former appeal (see 158 Ala. 622, 48 So. 377), on the theory of a plea of estoppel, and not as one setting up a reasonable custom which would justify the delivery to the wrong person. The allegations as to custom were mere inducements to show that plaintiff had directed or ordered defendant to deliver the lumber in question to the Lewis Company, and not to plaintiff,, or to the Hunter Company, to whom it had sold the lumber in question, and that, having so ordered defendant to deliver to the Lewis Company, it was now estopped to claim or show a wrongful delivery of the lumber sued for.
It was claimed and alleged that the plaintiff so ordered, directed, or caused the wrongful delivery of the him, her sued for by making out and delivering to the Lewis
It indisputably appears that the invoice to the Lewis Company did not describe the lumber in car 242 sued' for, either in quantity or quality; but it did accurately describe the lumber in car 3212, which was sold to the Lewis Company, both as to quantity and quality. Hence the defendant wholly failed to establish the material averments of its plea, and all the evidence shows that the wrongful delivery was made on account of defendant’s own negligence and wrong, and in violation of its bill of lading, and in violation of expressed and explicit instructions of the plaintiff consignee. It cannot be contended that the invoice called for a delivery of the cars, rather than the lumber described therein; and because the lumber described therein might be in two cars, or in one car, would not be an order to deliver other lumber as good, which might be in the cars and which were not described in the invoice or directions to deliver. Under all the evidence, and under every theory of it, the defendant delivered plaintiff’s lumber to the wrong party without a bill of lading, and without authority, and contrary to express and specific directions from plaintiff. The verdict and judgment rendered were the only verdicts or judgments that could have been properly rendered under the issues and evidence in this case. The general affirmative charge should have been given for the plaintiff.
We find no errors in the record of which defendant can complain. If there be any, they are necessarily without injury to the defendant, appellant. The judgment of the lower court is affirmed.
Affirmed.