| Md. | Apr 8, 1919
delivered the opinion of the Court.
The only question in this- case arises on the exception to the ruling of the Court below’ refusing to grant the plaintiff’s prayer.
It is said by Mr. Poe in Val. 1 of his work on Pleading and Practice, sec. 107, upon the authority of decided cases. (Hutzler v. Lord, 64 Md. 534" court="Md." date_filed="1886-03-09" href="https://app.midpage.ai/document/hutzler-v-lord-7896986?utm_source=webapp" opinion_id="7896986">64 Md. 534; Brinkley v. Hamilton, 67 Md. 169" court="Md." date_filed="1887-03-17" href="https://app.midpage.ai/document/brinkley-v-john-a-hambleton--co-7897335?utm_source=webapp" opinion_id="7897335">67 Md. 169): “If one is compelled, or in a situation to be compelled,, to pay the debt of another, as in the case of a, surety, and does pay it, the law implies a, promise on the part of him for whom the money is paid to repay it,” and the suit in this. case was brought on the common counts to recover for money alleged to- have been paid by the plaintiff for the defendants at their request.
The appellant, a common carrier, engaged in interstate commerce, had a station and freight yard in Cambridge, Maryland, and the appellees-, spoken of as “Baltimore eanners,” operated a. cannery at Cambridge, along the track of the appellant, about a quarter of a mile from, the appellant’s station, and bad a private siding, upon which the cars desired by them and to be loaded with freight, were placed by the-appellant.
In accordance with the terms of an agreement between the appellees and the appellant, the appellees, loaded the cars on their siding and sealed them with their private seal without any inspection of the contents- by the appellant, and the appellant issued bills, of lading without examining the freight in. the cars. The appellees also kept at their factory forms of; lulls, of lading of the appellant, and when they loaded a, car, they tilled out the bill of lading, making three impressions or
In September, 1912, the superintendent of the appellees’ factory at Cambridge received an order from the appellees in Baltimore to ship to the appellees as consignees, “notify Lafer Bros., Detroit, Mich.,” via. “P. R. R., c/o Anchor line,” 1200 cases Soughtaiter brand 3 lb. tomatoes at 80c., and on the 9th of September, 1912, the agent of the appellant at Cambridge, at the request of the appellees’ agent at Cambridge, signed and issued to them two hills of lading, called “order” bills of lading, for two cars on tbeir siding each loaded with 600 cases of Soughtafter brand tomatoes, one in the morning for car S. A. L. 23595, and the other in the afternoon for car Southern 34014, both consigned to the order of the appellees at Detroit, Michigan, with a. memorandum “notify Lafer Bros.”
The superintendent of the appellees at Cambridge also received in September, 1912, an order from the appellees to ship' to Gr. E. Howard & Co., Hewburg, H. Y., “600 cases of Big R. brand 3 lb. tomatoes at 82%o., and on the 10th of September, 1912, the agent of the appellant, at the request of the appellees’ agent, signed and issued to them what is called a “straight” bill of lading fox a carload of 600 cases of Big R. brand tomatoes, in car Southern 34014, being the same car for which one of the order bills of lading had been issued on the day before', September' 9th.
Car S. A. L. 23595, containing the tomatoes called for in one of the order bills of lading issued on the 9th of September, consigned to Detroit, Michigan, left Cambridge that afternoon, and car Southern 34014, referred to in the two bills of lading, one the order bill of lading consigning the car
The two order bills of lading issued by appellant on September 9th, one for car S. A. L. 23595 and the other for car Southern 34014, endorsed by the appellees, with drafts, attached, drawn on Lafer Bros, for the price of the tomatoes in each car, were placed by the appellees in a bank in Detroit. Lafer Bros, paid the drafts and received the bills of lading, and then requested delivery by the Anchor line, the terminal canier, of the two carloads of tomatoes called for in the bills of lading. The Anchor line delivered to them the contents of car S. A. L. 23595, but was unable to deliver the contents of car Southern 34014 because-that car had, in accordance with the straight bill of lading consigning it to Howard & Co., Rewburg, New York, been delivered to Howard & Co., who paid the appellees for the tomatoes contained therein.
Lafer Bros, having paid the appellees the amount of the draft attached to appellant’s bill of lading for car Southern 34014, and having failed to receive the contents of said car, called on the appellant for the amount of said draft and the appellant paid it, and is now seeking to recover it from the appellees.
It seems to be conceded, and the evidence is clear to the effect, that the appellant issued two bills of lading for car Southern 34014, one an order bill of lading describing its contents as 600 cases, of Soughtafter brand tomatoes, and consigning it to the appellees at Detroit, Michigan, “notify Lafer Bros.,” and the other a straight bill of lading, describing its. contents as 600 cases, of Big R. brand tomatoes,, and consigning it to Howard & Co., Rewburg, New York, and that car Southern 34014, containing the Soughtafter brand, was delivered to Howard & Co.
The evidence adduced by the appellant tends to show that the appellees delivered only two cars, to the appellant, one
Upon this state of the proof, the plaintiff submitted the following prayer: “The plaintiff prays the Court to rule as a matter of lawi: That if the Court, sitting as a jury, shall find from the evidence that in September, 1912, the plaintiff was a common carrier, engaged in the transportation of freight; and that Mr. W. M. Sinith was its agent at Cambridge, Maryland, and was duly authorized to receive freight for transportation and to issue bills of lading therefor; and find that the defendants, Roberts Bros., maintained a factory at or near Cambridge, for the canning of tomatoes, at which there was a side-track, and that Mr. Bramble was the agent and superintendent of the defendants at Cambridge, Md., .in September, 1912; and if the Court shall find from the evidence that the defendants’ agent at Cambridge on September 9th, 1912, prepared and presented to the plaintiff’s agent the order bill of lading of the plaintiff, dated September 9th, 1912, offered in evidence, which called for six hundred cases, a carload of canned tomatoes, ‘Soughtafter Brand,’ in car Sou. 34014, consigned by the defendants to themselves at Detroit, Michigan, order to notify Lafer Bros., at Detroit, routed by the Anchor Line, and requested the plaintiff’s agent to issue the said bill of lading to defendants, and the plain
The Court below refused the plaintiff’s prayer, and the judgment being in favor of the defendants the plaintiff appealed.
The objection urged by the appellees against the prayer is that the whole prayer,' and the following paragraph thereof, ignores “the evidence as to the mistake in the car number:”
We do not think that the prayer is open to that objection. It not only required the Court, sitting’ as a jury, to find, as stated in the paragraph referred to, “that the defendants did not deliver to the plaintiff in car Sou. 34014 six hundred cases of Big R. tomatoes, as called for in the straight bill of lading of the plaintiff, dated September 10, 1912,” but in the last paragraph it based the plaintiff’s right to recover upon a further finding “that the plaintiff issued to the defendant on the 9th and 10th days of September, 1912, one more hill of lading than the number of ears which the defendants delivered to the plaintiff, and which the plaintiff received from the defendants.” On the plaintiff’s and the defendants’ theories of the case, the real issue of fact was whether the defendants delivered to the plaintiff three carloads of tomatoes. The evidence, was not disputed that two cars, viz: car S. A. L. 23595 and car Southern 34014, were delivered to the plaintiff, and that both of these cars contained Sought-after brand tomatoes, and the only question was whether defendants delivered to the plaintiff another car, containing Big R. brand tomatoes, and a finding by the Court that the plaintiff delivered to the defendants one more bill of lading tban the number of cars they delivered to the plaintiff would necessarily have precluded a finding by the Court that the defendants delivered to the plaintiff a car containing Big R. brand tomatoes.
We think the prayer fully covers both the plaintiff’s and defendants’ theories of the case, and that upon a finding of the facts stated therein the plaintiff would have been entitled to recover. We must, therefore, reverse the judgment and remand the case for a, new trial. “
Judgment reversed, with costs and a new trial awarded.