63 So. 790 | Ala. Ct. App. | 1913
The plaintiff, as named in the original summons and complaint, was Mike Brewster. At the trial, by leave of the court first had and obtained,* the complaint was amended so as to make “J. F. Gullatt, suing for the use of Mike Brewster,” instead of
The allegations of such a complaint may be sustained even by proof of a special contract with the carrier, wherein its common-law liability is limited. — L. & N. R. R. Co. v. Landers, 135 Ala. 510, 33 South. 482; So. Ry. Co. v. Webb, 143 Ala. 310, 39 South. 262, 111 Am. St. Rep. 45, 5 Ann. Cas. 97.
And the consignor may maintain the suit though another is named in the bill as consignee, since the presumption that the latter has title to the goods shipped is merely prima, facie, and may be overcome by proof to the contrary. — Jones v. Sims & Scott, 6 Port. 138; 4 Am. & Eng. Ency. Law, 525, 536; L. & N. R. R. Co. v. Allgood, supra; So. Ry. Co. v. Proctor, supra.
Here, there is evidence tending to show that the bale of cotton, for a failure to deliver which to the consignee named in the bill of lading the defendant is sued, was the property of Mike Brewster, the real plaintiff, and was delivered, together with other cotton, to the defend
Section 2489 of the Code, requiring all suits upon promissary notes, bonds, or other contracts, express or implied, “for the payment of money ” except instruments governed by the commercial law,_ to be prosecuted in the name of the party really interested, whether he has the legal title or not, has no application to the contract here sued on, since it is not one for “the payment of money,” but one for the transportation and delivery of property. — Code, § 5158; Sullivan v. L. & N. R. R. Co., 138 Ala. 650, 35 South. 694.
Another tendency of the evidence is to the effect that the bale of cotton, for a failure to deliver which the suit is brought, was the property of Gullatt, the nominal plaintiff, and was shipped by him to Knight, Yancey & Co. for sale and remittance, together with 14 other bales,
Section 5514 of the Code fixes the measure of damages, for the failure on the part of a common carrier to deliver goods, at the market value of such property at the place of destination at the time and in the condition it should have been delivered in, with interest from the time it should have been delivered. This is but declaratory of the rule existing at common law. The bill of lading here sued on contains, among others, the following provision: “The amount of any loss or damage for which any carrier becomes liable shall be computed at the value of the cotton at the place and time of shipment under this bill of lading, unless a lower value has been agreed upon or has been determined by the classification upon which the rate is based, in either of which events such lower value shall be the maximum price to govern such compensation.” It has been repeatedly held that such a stipulation in a bill of lading, changing the
The plaintiff introduced as a witness one Sadler, who testified that he was connected with the firm of Knight, Yancey & Co., the consignees, at the time of the shipment, and Was the general agent in charge for them of the Decatur office of the company, to which point the cotton was shipped, and that Knight, Yancey & Co. never received the bale of cotton, for a failure to deliver which this suit is brought, but that the Gulf Compress Company, to whose plant at Decatur all cotton brought in to Decatur over defendant’s railroad first went on arrival there, and which was the agent of the defendant, to then check up the cotton and report all shortages, reported to the railroad the shortage of the bale of cotton sued for, informing witness, who was the agent, as said, of the consignees, Knight, Yancey & Co., of the shortage, and furnishing him a copy of the written report to this effect made by the compress company to the defendant railroad company, which report was introduced in evidence. The rule is well settled that the declarations of an agent, or other authorized representative of another, are, within the scope of his authority, and while acting as such, the declarations of the principal, and, if against interest, may be proved as admissions. — Buchanan v. Collins, 42 Ala. 419; Williams v. Shackelford, 16 Ala. 318. It was therefore competent to prove in this case, as was done, the admission of the Gulf Compress Company, defendant’s agent, of the shortage of the bale of cotton on the arrival of the shipment at Decatur; and the copy, made by them then, of
What we have hereinbefore said with reference to one theory of the evidence is sufficient to indicate our reasons for the opinion that the court did not err in refusing the three charges made the basis, respectively, of the twenty-fifth, twenty-sixth, and twenty-seventh assignments of error.
For the errors hereinbefore pointed out, the judgment is reversed, and the cause remanded.
Reversed and remanded.