Southern Railway Co. v. Born Steel Range Co.

126 Ga. 527 | Ga. | 1906

Evans, J.

(After stating the facts.) It affirmatively appears that the defendant railway company duly performed its duty as a common carrier to safely transport the shipment to destination. After placing the shipment in a place of safety, the liability of the company as an insurer ceased and its liability as a warehouseman began, unless the local custom prevailing in Savannah as to giving notice to consignees entered into and became a part of the contract of shipment. Ga. & Ala. Ry. v. Pound, 111 Ga. 6. However this may be, the company is not chargeable with any default in failing to observe this local custom or in not making delivery to the consignee, who could not be located. Relatively to him, the company had a statutory right, to dispose of the shipment at public auction, upon compliance with the requirements of the Civil Code, § 2303, after waiting upon him without avail until June 7, 1902, to appear and pay freight and warehouse charges. But some time prior to that date, the company had received notice that the consignor was the owner of the shipment; and even if it was under no legal duty to have previously notified the consignor if its inability to locate the consignee (American Sugar Co. v. McGhee, 96 Ga. 27), the company was under a duty, after becoming informed of the ownership of the property, to hold the shipment a reasonable time subject to the order of the consignor. Of course the company had a lien on the property for freight charges (Civil Code, § 2287), and the consignor would be under an obligation to settle with the company for the freight and storage charges before exercising the right to receive the shipment at Savannah or to direct a reshipment of the property. Penn. Steel Co. v. Ga. R. Co., 94 Ga. 636. Before it was sent to Toccoa for sale at public auction, the consignor had requested the railway company to return the shipment; the charges claimed thereon were not, it is true, tendered to the company by the consignor; yet the reason why this was not done appears to be that the officials of the company undertook to get the consent of the Southeastern Car-Service Association that the claim for the accumulated storage charges might be waived. As pointed out by counsel for the railway company, there seems to have been no consideration for this undertaking, and the company was not bound to carry out its understanding with the consignor as to remitting storage charges in the event the necessary consent of the association could be secured. Still, the company’s officials having gratuitously entered upon the project, the consignor was relieved for the time being of offering to pay the company’s demand, .and until the matter was finally adjusted no right to sell the shipment at public auction could arise. Having induced the consignor to rely upon the promise to endeavor to remit a portion of the charges, the company is estopped from asserting that the promise was without consideration. It was at liberty at any time to abandon its efforts along this line and to demand, as a condition precedent to the surrender of shipment, payment in full of all lawful charges for freight and storage; but until such a demand and ¡a refusal by the consignor to comply, therewith, the company could acquire no right to sell the property upon the idea that there had been a default in making payment of its just demands. The sale •of the property, pending the negotiations with respect to- fixing ihe amount which the consignor would be called on to pay, was a conversion. That this conversion was brought about through a misunderstanding on the part of some of the company’s officials as to the true status of the matter can not affect the question of the company’s liability; it, at least, was bound to know how the matter .stood, and is responsible for the wrongful acts of its officers in disposing of the property at auction sale. It may be that it was the right of the company to plead that it acted in good faith and through the mistake of some of its officers or servants, and for this reason should be allowed to set off against the plaintiff’s claim such lawful charges as the plaintiff would have been under a duty to pay before getting possession of the shipment. But no such plea was filed, no evidence was .submitted as to the amount of the charges the company was entitled to collect, and the sole contention urged upon the trial was that the company was not liable in any amount to the plaintiff. This being true, the admitted value of the property was the only measure by which the plaintiff’s recovery could be fixed; and, ruling only upon the single question presented for our determination, viz., whether or not a conversion of the property was shown, we hold that the trial judge arrived at a proper solution of this question.

Judgment affirmed.

All the Justices concur, except Fish, G. J., absent.