153 Va. 575 | Va. | 1929
delivered the opinion of the court.
P. L. Aylor, trading as Clarke Milling Company, hereafter called the milling company, has recovered a judgment against the Norfolk and Western Railway Company, hereafter called the railway company, upon this state of facts:
The milling company, on August 27, 1925, consigned a carload of flour (100 barrels, packed in cotton bags, some containing ninety-six pounds, some forty-eight pounds, and the remainder twenty-four pounds per sack), to its own order from Berryville, Virginia, to Timmonsville, South Carolina, with directions to notify Rose & Rogers, of Timmonsville, S. C. The shipment was on the uniform bill of lading, prescribed by the Interstate Commerce Commission, and contained this provision: “The surrender of this original order bill of lading properly endorsed shall be required before the delivery of the property. Inspection of property covered by this bill of lading will not be permitted unless provided by law or unless permission is endorsed on this original bill of lading or given in writing by the shipper.”
. [1] The question as to whether Turner, as the agent of the railway company, acquiesced in and assented to the opening of the car and the unauthorized delivery of the flour was fairly submitted to the jury under proper instructions. We are of opinion that there can be no doubt about the correctness of the conclusion of the jury under the testimony, that when the agent of the railway company pointed out the specific car containing the flour to McLeod, the drayman, who came there to unload it, this constituted the delivery of the car and its contents, which was unlawful because done without requiring the delivery of the bill of lading.
We cannot agree that this was merely the delivery of the single drayload of the flour which the drayman removed from the car and afterwards returned. There may be a partial delivery of freight where it consists of separate articles, but when carload freight is placed upon a delivery track and a drayman is permitted to open it and commence unloading it, this is a delivery of the entire carload. If this delivery is wrongful, and upon such a bill of lading it is prima facie wrongful unless the original order bill of lading, properly endorsed, is first surrendered to the delivering carrier, then it is a conversion of the contents of the car.
The flour was refused by Rose & Rogers because, as
Efforts were made by the claim agent of the Seaboard to agree upon the damages with Rose & Rogers, and to induce them to pay the draft and adjust the matter. These efforts failed, and on September 22nd, the claim agent of the Seaboard notified the shippers of the situation. Rose & Rogers also notified them of their refusal to accept the flour and their reasons therefor. The milling company declined to give any orders as to the disposition of the flour. In December the flour was sold by the Seaboard. After deducting from the proceeds of sale the freight, $408.00 for demurrage, and some other expenses, there remained $101.52 which was tendered to the milling company and refused. The bill of lading and the unpaid draft were returned to them, and they sued the initial carrier, the Norfolk and Western, as for a conversion. It is claimed for the railway company that there was neither delivery nor conversion.
Similar questions have been frequently considered by the courts. This general summary from 4 Ruling Case Law, section 294, page 842, is well supported by the cases: “The fact that a bill of lading contains a direction to notify a certain person of the arrival of the goods is no indication' that he has any interest in them, for as is well known, the practice of ‘notifying’ a person of the arrival of goods is generally resorted to by the vendor, who, while consigning goods to himself or to his own order, wishes at the same time to have the vendee notified of the arrival so that he may be afforded an opportunity of receiving them on payment of the draft drawn on him and the delivery of the bill
In a note to Atchison, Topeka & Santa Fe R. Co. v. Schriver, 72 Kan. 550, 84 Pac. 119, 4 L. R. A. (N. S.) 1056, the general rule is thus stated: “It is well settled that a direction in a bill of lading or shipping receipt, to notify a certain person of the arrival of goods which are consigned to the order of the consignor or of a third person, does not justify the carrier in delivering the goods to the person whom it is directed fco notify, without the production of the bill or shipping receipt properly endorsed; and if the carrier does deliver the goods to him under such circumstances, it is liable for the value thereof to the holder of the bill or shipping receipt. Northern Pennsylvania R. Co. v. Commercial Nat. Bank, 123 U. S. 727, 31 L. Ed. 287, 8 Sup. Ct. Rep. 266; Southern R. Co. v. Atlanta Nat. Bank, 56 L. R. A. 546, 50 C. C. A. 558, 112 Fed. 861; Arkansas S. R. Co. v. German Nat. Bank [77 Ark. 482], 92 S. W. 522, [113 Am. St. Rep. 160]; Illinois C. R. Co. v. Southern Bank, 41 Ill. App. 287; Libby v. Ingalls, 124 Mass. 503; Union Stock Yards Co. v. Westcott, 47 Neb. 300, 66 N. W. 419; Bank of Commerce v. Bissell, 72 N. Y. 615; Wright v. Northern C. R. Co. [Pa.], 8 Phila. 19.”
None of the exceptions to this general rule are applicable in this case. Here it seems to be a mere question of the carriers’ obligations under the unqualified written contract.
The subject is elaborately annotated in
The case of Georgia, F. & A. Ry. Co. v. Blish Milling Co., 241 U. S. 190, 36 S. Ct. 541, 60 L. Ed. 948, which affirmed a judgment of the Georgia Court of Appeals, 15 Ga. App. 142, 82 S. E. 784, in which a recovery was allowed, is quite similar to this case. That was a shipment of a carload of flour under an order notify bill of lading from Seymour, Indiana, to Bainbridge, Ga. In that ease also the flour was transferred to another car by an intermediate connecting carrier. The delivering carrier, without requiring payment of the draft and surrender of the bill of lading, which were ultimately returned to the Blish Milling Co., the shipper, delivered the ear to the Draper-Garrett Grocery Company immediately on its arrival by placing it on the side track of that company. While unloading, the grocery company discovered that some of the flour was wet, and thereupon reloaded the part removed and returned the flour to the carrier. No
Many cases might be cited enforcing this rule. We shall content ourselves with these: Dilman Bros. v. Patteson Produce & Provision Co., 2 Ga. App. 213, 58 S. E. 365; Early & Daniels Co., Inc. v. Aulander Flour Mills, 187 N. C. 344, 121 S. E. 539; General Electric Co. v. Southern Ry. Co., 72 S. C. 251, 51 S. E. 695, 110 Am. St. .Rep. 600, 38 L. R. A. 464; Midland Val. R. Co. v. J. A. Fay & Eagan Co., 89 Ark. 343, 116 S. W. 1171; Kemper Mill & Elevator Co. v. Hines, 293 Mo. 97, 239 S. W. 803.
The only question in this case is a question of fact, namely, was there a delivery by the connecting carrier without the production of the bill of lading and in .violation of its terms? We are of opinion that the evidence for the plaintiff supports the conclusion that there was such an illegal delivery, and that concludes this ease.
This strict construction of the contract may seem to be harsh in some close eases, but when it is remembered that a very large part of the wholesale business of the country is done upon the faith of similar contracts, that is, in carloads upon order notify bills of lading, it is obvious that any failure of
Affirmed.