19 Ga. App. 100 | Ga. Ct. App. | 1916
(After stating the foregoing facts.) Section 4361 of the Civil Code .provides that “All actions upon promissory notes, bills of exchange, or other simple contracts in writing shall be brought within six years after the same become due and payable.” A bill of lading is a written contract. McElveen v. Southern Railway Co., 109 Ga. 249 (34 S. E. 281, 77 Am. St. R. 371); 1 Hutchinson on Carriers (3d ed.), § 157. The particular bill of lading in this case provides as follows: “It is mutually agreed as to each carrier of all or any of said property over all or any portion of said route to destination, and as to each party at any time-interested in all or any of said property, that every service to be performed hereunder shall be subject to all the conditions, whether printed or written, herein contained (including conditions on back hereof) and which are agreed to by the shipper and accepted for himself and his assigns.” On the back of this bill of lading is the following provision: “Sec. 8.'The owner or consignee shall pay the freight, and average if any, and all other lawful charges accruing on said property.” Under this, contract it is clear that the consideration thereof, as regards the railroad company, was the freight to be paid for the transportation of the shipment, and that the obligation to pay this freight was in writing. The obligation to pay the legal rate of freight is binding, under the provisions of the bill of lading, irrespective of whether or not the specific rate of freight is stated in the bill of lading, since it is stated therein that it is received subject to the classifications and tariffs in effect on the date of its issue. Upon an interstate shipment the freight charges for the transportation of the goods ar$ fixed by the schedule of rates and joint, tariffs filed and posted in accordance with the act of- Congress of June- 29, 1906, known as the “Hepburn act;” and though a common carrier, by mistake or otherwise, delivers goods upon the payment of a lower rate than that stated in
In an interstate shipment the bill of lading is the contract which controls the entire transaction. Georgia, Florida & Alabama Railway v. Blish Milling Co., 241 U. S. 190 (36 Sup. Ct. 541, 60 L ed. 948). An “order-notify” consignee who purchases the bill of lading, makes no objection to its provisions, and receives the goods shipped thereunder is bound by all of its provisions. He stands in the shoes of the shipper, being his transferee. He is more than a mere “naked” assignee. See Paxson v. Warfield, 6 Ga. App. 315 (65 S. E. 34); Boatmen’s Savings Bank v. Western & Atlantic R. Co., 81 Ga. 221 (7 S. E. 125); Askew v. Southern Ry. Co., 1 Ga. App. 79 (58 S. E. 242); 4 R. C. L. 10, § 13. The terms of the contract or bill of lading are binding upon the “order-notify” con
The question of whether the suit was barred by the statute of limitations is practically the only point raised in this court. The record discloses that the true rate of freight over the route the shipment moved (and which was the route as given in the bill of lading) was $2.03 per cwt., that the total amount of the freight due was $203, and that the.amount actually paid by the defendant, the “order-notify’-’ consignee, was $186. It follows that there was an undercharge of $17, the amount sued for. The question as to whether, under such circumstances, the carrier would have the light (under section 4360 of' the Civil Code) to bring suit within twenty years after the right of action accrued is not passed upon, the answer to that question not being necessary for the determination of this case.
The court erred in overruling the certiorari and in failing to render a final judgment for the plaintiff.
Judgment reversed.