136 P. 34 | Or. | 1913
delivered tbe opinion of tbe court.
On tbe 21st day of August, 1912, tbe plaintiff shipped from La Grande to Union, Oregon, a distance of less than 20 miles, over tbe Oregon-Washington Railroad & Navigation Company, and tbe defendant, 424 sacks of Portland cement. Tbe first-named company carried said cement from La Grande to Union station, and tbe defendant received it at that point and carried it to tbe town of Union, its final destination. This cement was consigned by tbe plaintiff to itself at Union, and tbe bill of lading was issued by tbe
The defendant on the 28th day of August, 1912, delivered said cement at Union to Mack, Duke & Co., and they receipted for it for the plaintiff. The defendant did not notify the plaintiff of the arrival of said cement at Union. On December 7, 1912, the plaintiff, at Union, presented to the defendant said hill of lading and demanded of the defendant the delivery of said cement to it, but the defendant failed to deliver to the plaintiff said cement or any part thereof, having previously delivered it to said Mack, Duke & Co. The plaintiff did not demand the delivery of said cement until December 7, 1912. The freight on said cement was paid by said Mack, Duke & Co. when it was delivered to them.
The amended complaint demands judgment for $349.80 damáges for the failure of the defendant to deliver said cement to the plaintiff. The answer admits portions of the amended complaint and denies other parts thereof, and then sets up affirmative matter. The plaintiff demurred to the new matter of the answer, alleging that it does not state facts sufficient to constitute an estoppel or a defense. This demurrer was overruled, and the plaintiff replied, denying parts of the new matter of the answer.
The pleadings admit that the plaintiff shipped the 424 sacks of cement to Union, on August 21, 1912, consigned to the plaintiff. The answer alleges that the plaintiff on August 21, 1912, sold and shipped said cement to Mack, Duke & Co. at Union, and that the defendant received said shipment of cement and delivered it to said Mack, Duke & Co. at Union, on August '28, 1912, by direction of the plaintiff, and that the plaintiff immediately charged said cement to said Mack, Duke & Co., and that plaintiff sent a bill and
The appellant assigns various alleged errors for which it asks a reversal of the judgment of the trial court.
Defendant’s exhibit 2 is a statement of account made by the plaintiff and sent by it to Mack, Duke & Co., and dated September 1,1912, in which the plaintiff charged Mack, Duke & Co. with 106 barrels of cement, $349.80. The cement referred to in said exhibit is admitted by the manager of the plaintiff to be the same cement referred to in the amended complaint, and which is the basis of this action, and, while said account is dated September 1, 1912, the charge of 106 barrels of cement, $349.80, is dated August 21, 1912.
Defendant’s exhibit 3 was identified by the manager of the plaintiff as a letter written by him September 16,
Defendant’s exhibit 4 is a letter written by the plaintiff to Frank Mack on September 25, 1912, concerning the claim for cement, and in this letter the plaintiff again expresses disappointment that the bill had not been paid, urges payment, and incloses another bill covering the 106 barrels of cement and some items not relevant to the issues in this case.
The defendant’s exhibit 6 is a check for $19.25 by which Mack, Duke & Co. paid the freight on said cement from La Grande to Union. The check is dated August 28, 1912, and appears to have been paid. The evidence tends to prove that the defendant delivered said cement to Mack, Duke & Co. on said day, and that they paid the freight at that time.
The defendant’s exhibits 1, 2, 3, and 4 show that, after the defendant delivered the 106 barrels of cement to Mack, Duke & Co., the plaintiff charged said cement to said firm on the plaintiff’s books and'made frequent efforts to collect from said firm the price of said cement. The manager of the plaintiff admits that he knew, as early as September 1, 1912, that said cement had been delivered to said firm, and that he never made any claim to the defendant that it had wrongfully delivered said cement to said firm until December 7,1912. In other words, the plaintiff waited more than three months after it knew that the cement had been delivered to said firm before making any complaint to the defendant of said delivery, and in the meantime endeavored to collect the value of the cement from said firm.
Exhibit 6 tended to show that said firm paid the freight on said cement. As the cement was consigned to the plaintiff, the freight was properly chargeable to it. The plaintiff admits that it did not pay the freight. We think that said exhibit was admissible as a circumstance tending to support the defendant’s theory. However, it was not a reversible error, if error at all, as its admission could not injure the plaintiff.
The third assignment of error is the admission of the evidence of A. I. Bidler to prove that Mack, Duke & Co. paid the freight on said cement. The admission of that evidence was not error.
(1) “I instruct you, gentlemen of the jury, that it is the duty of a common carrier of goods to deliver the goods only to the consignee named in the bill of lading, or some one authorized by the consignee to receive the same. It is the duty of a railroad company not to deliver freight without the production of the bill of lading. If you find from the evidence in this case that the defendant delivered the cement to Mack, Duke & Co. without the production of the bill of lading, and without plaintiff’s consent or direction, and that defendant did not, subsequent to the delivery of said cement to Mack, Duke & Co., ratify said delivery to said Mack, Duke & Co., and if you further find that the plaintiff was the owner of the cement at the time it was delivered to Mack, Duke & Co., then you will find for the plaintiff for the reasonable value thereof.”
*404 (2) “If you find from the evidence in this case that the plaintiff either expressly or impliedly consented to the delivery of said carload of cement to Mack, Duke & Co., or that after the same was so delivered to them they ratified and approved of said delivery, then your verdict must be for the defendant.”
(3) “If you find from the evidence in this case that said carload of cement upon its arrival at Union, Oregon, was delivered to Mack, Duke & Co. by the defendant, and that the plaintiff immediately or shortly thereafter had notice and knowledge of such delivery, and thereupon charged up said car of cement to Mack, Duke & Co., and thereafter wrote to them admitting and stating that they had shipped said carload of cement to them and never made any claim against the railroad company for wrongful delivery of said cement until the 7th day of December, 1912, and that plaintiff intended to release the defendant company from liability for misdelivery, and take the said Mack, Duke & Co. for payment, then it will be your duty to return a verdict for the defendant.”
(-4) “I instruct you, gentlemen of the jury, that plaintiff had a right to have the cement consigned to itself at Union, Oregon, and that the defendant had no right to deliver the cement to Mack, Duke & Co. unless the plaintiff authorized the railroad company to deliver the cement to Mack, Duke & Co.”
The answer alleges inter alia, that on August 21, 1912, the plaintiff sold and shipped the cement in question to the firm of Mack, Duke & Co., and that the defendant on the 28th day of August, 1912, delivered said cement to said firm at Union, and that said firm receipted for said cement by the authority of the plaintiff in the name of W. H. Stanchfield (its manager), and that the plaintiff charged on its books said cement to said firm at the price of $349.80, and sent a bill and statement of such sale to said firm, and that the defendant was immediately advised of said delivery to
The evidence tends to show that said cement was delivered to said firm on August 28, 1912. Mr. Stanchfield, manager of the plaintiff, admits that he made out a statement of account against said firm for said cement, charging them therewith as of date of August 21, 1912, the date of said shipment, and this statement was given o.r sent to said firm, and it bears date of September 1,1912, four days after said cement was delivered by the defendant to said firm. He admits, also, that he from time to time sent to said firm other statements of said account, urging them to pay for said cement, and that he never complained to the defendant of said delivery of said cement to said firm until December 7th, more than three months after such delivery. On pages 16 and 17 of the evidence, Mr. Stanchfield testifies that he consigned said cement to himself with the intention of going to Union and delivering the cement to himself, and either to collect for it or make arrangements for the collection. He admits that he had some talk with Mack, Duke & Co. about the cement before it was shipped, and about the use of it, if they complied with certain conditions. This witness says that it must have been two weeks before he learned that said firm had obtained possession of the cement, and he says that when he learned that they had obtained the cement he commenced to “punch” them up for payment for the cement, and gave them “hail Columbia” over the telephone, and that he wanted to know how they obtained the cement without having the bill of lading. He demanded payment for the cement as soon as he learned that they had it. He did not at that time demand of the defendant to know why it had delivered
The first, second and third charges set out, supra, state the law correctly. The first charge instructs the jury that it is the duty of a carrier to deliver the goods only to the consignee named in the bill of lading, or to someone authorized by the consignee to receive them. It then states that it is the duty of a carrier not to deliver freight without the production of the bill of lading. This is true as a general rule. This charge, after stating the above general principles, instructs the jury that, if they find from the evidence that the defendant delivered the cement to Mack, Duke & Co. without the production of the bill of lading, and without plaintiff’s consent or direction, and that the defendant did not, subsequent to the delivery of the cement to Mack, Duke & Co., ratify said delivery to said firm, and they further find that the plaintiff was the owner of the cement at the time it was so delivered to said firm, then they should find for the plaintiff for the reasonable value thereof. This states the law correctly as applied to the facts of this case. The plaintiff was entitled to a verdict
This charge does not directly contradict the other instructions. It merely omits to mention ratification, but ratification is explicitly stated in three other charges that were given. The jury were not misled by this fourth charge, as is conclusively shown by their verdict for the defendant. The jury must have believed that the plaintiff either authorized the delivery to Mack, Duke & Co., or ratified it after it was
The charge of the court covered all the questions at issue and it was fair to each party and we find no error in it.
We find, also, that the court did not err in refusing to give the charges requested by the plaintiff, or in overruling the plaintiff’s motion for a new trial, or for judgment notwithstanding the verdict.
The judgment of the court below is affirmed.
Affirmed.