23 Ga. App. 309 | Ga. Ct. App. | 1919
1. The petition as amended showed an action ex contratu against the defendant railway company for its failure to deliver at Toccoa, Georgia, property which had been delivered to it at Macon, Georgia, for shipment; and the courts of Bibb county had jurisdiction of the suit. Central Railroad Co. v. Brunson, 63 Ca. 505; Albany & Northern Ry Co. v. Merchants &c. Bank, 137 Ca. 391 (73 S. E. 637); Friedman v. Seaboard Aid Line Ry., 124 Ca. 472 (52 S. E. 763) ; Wright v. Southern Ry. Co., 7 Ga. App. 542 (67 S. E. 272).
2. The petition as amended was not subject to, any ground of the demurrer interposed.
3. A bill-of-lading stipulation requiring the surrender of the original order bill of lading, properly endorsed, before the delivery of the shipment, does
4. Where an “order-notify” bill of lading contains a provision requiring the surrender of the original order bill of lading, properly endorsed, and the shipper, by mistake, sends the original bill of lading (instead of the memorandum bill of lading) direct to the “order-notify” party, but sends it unendorsed, the carrier is not thereby relieved from requiring such endorsement before' delivering the shipment to the “order-notify” party; and where, under such circumstances, the carrier so delivers the property, without requiring such endorsement, and the “order-notify” party obtains the shipment, and subsequently becomes insolvent, without having paid the purchase-price of the property, the principle of law that where one of two innocent persons must suffer for the act of a third person, he who puts it in the power of the third person to inflict the injury must bear the loss, is not applicable. 'The antecedent error of the shipper in sending the original bill of lading to the “order-notify” party did,not put it in the power of that party to x inflict the injury, as its possession of the unendorsed bill of lading did not vest it with any apparent right to the property. The loss resulted from the negligence of the carrier in failing to require proper endorsement of the bill of lading. Weyand v. Atchison &c. Fé Ry: So., 75 Iowa, 573 (39 N. W. 899, 1 L. R. A. 650, 9 Am. St. R. 504).
5. The Massee & Felton Lumber Company at Macon, Ga., delivered to the defendant railway company a car of lumber consigned to the qrder of the shipper at Toccoa, Georgia, with instruction to notify the Georgia Furniture Company, at the latter place. An “order-notify” bill of lading was executed in triplicate and signed by both the shipper and the railway company, and contained the following provision: “The surrender o'f this original order bill of lading properly endorsed shall be required before the delivery of the property.” The three copies of the bill of lading were practically the same, with the exception that one was headed “Order Bill of Lading—Original,” another was headed “Memorandum Bill of Lading,” and the third' was headed “Shipping Order.” The original and memorandum bills of lading were delivered by 'the railway company to the shipper, and the shipping order was retained by the railway company. Through an error of a clerk in the office of the lumber company, the original bill of lading, unendorsed, was . mailed directly to the Georgia Furniture Company at Toccoa (the “notify party” in the bill of lading), and thi> memorandum bill of lading, endorsed on its back by the lumber company, was attached to a draft by that company on the furniture company, for the purchase-price of the car of lumber, and the draft with the memorandum bill of lading, so endorsed, was deposited by the lumber company, in a bank at Macon, Georgia, and transmitted by that bank to a bank at Toccoa, Georgia, the residence of the furniture company. The defendant railway com
6. Under the foregoing rulings, the court did not err in overruling tfie certiorari.
Judgment affirmed.