107 Tenn. 522 | Tenn. | 1901
This is an action for damages for failing to promptly deliver a car load of apples, shipped from Johnson City to Knoxville, Tenn. The suit originated before a Justice of the Peace. On appeal to the Circuit Court there was a verdict and judgment for 1212.50 for the plaintiff, Deakins, and the railway company appealed, and has assigned errors. These apples were consigned to Kaiser Bros., apple dealers, at Knoxville, and were expected by the consignor to arrive and be delivered to them early Saturday morning, in time for the trade of that day, and the road was so notified. They were to be received by Kaiser Bros., on consignment and sold by them on a commission of ten per cent, on gross proceeds of sale. The car load of apples reached Knoxville at 4 o’clock on Saturday morning. At 6 o’clock the agent of the company informed the consignor that he had received bill of lading, añd was instructed by the consignor to place the car at Kaiser Bros. ’ warehouse for unloading, to which he replied, “All right.” Later, and about ten o’clock, the plaintiff again requested the agent to place the car at the warehouse, and was answered that it would be done, and there is evidence to the effect that the agent then stated that it was his fault it had not been done earlier. The car was not placed at Kaiser Bros.’
The first assignment of error is to the effect that the suit should have been brought in the name of Kaiser Bros., and not in that of Deakins. This was not error. The apples were consigned to Kaiser Bros., to be sold by them on commission, and they were not sold to them, and the fact that they were thus consigned did not vest the title to them in Kaiser Bros. Until sold, the title to the apples was in Deakins, and at no time was it in Kaiser Bros.
It is said it was error to give judgment against the company for any damages, because there was a congestion of freight in the yards of the company, which prevented an earlier delivery. Whether this would constitute a good excuse for delay in delivery in ordinary cases, we need not consider, as the agent of the company' knew of the congestion, and yet promised to make the delivery, and thus prevented the consignee from coming to the depot or other usual place of delivery of freight and receiving the apples.
It is said there is no material evidence to support the verdict. This assignment is directed to the amount of damages found against the company. The plaintiff estimated these damages at $212.50,
There is no reversible error in the record and the judgment of the Court below, and the judgment is affirmed, with costs.