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Gulf, C. & S. F. Ry. Co. v. Darby

several months without being accounted for and delivered to the appellees. Plaintiffs' cause of action is, in effect, one of conversion of the entire car load of wheat; but it does not appear from the facts that such an unreasonable length of time had elapsed from the time that the wheat should have arrived before the occurrence of the storm by which it was partially destroyed as would authorize the conclusion that such delay amounted to a conversion. A mere delay of a carrier in delivering the shipment is not usually held tantamount to a conversion of the property. Bolling v. Kirby (Ala.) 24 Am. St. Rep. 793, and notes thereto on pages 808, 815, and 816 (s. c. 7 South. 914). And if the property in the meantime is destroyed by the act of God, the carrier will not be held liable. This principle is recognized in the recent case of Railroad Co. v. Bergman (Tex. Civ. App.) 64 S. W. 999, in which it was also held that the storm in question was of such an unprecedented character that it could not have been anticipated and guarded against by the exercise of the utmost diligence; and we think that case is decisive of the question presented in this case under appellant's assignments of errors, except as to that portion of the wheat which was, after the storm, recovered by the appellant. We think the conduct of appellant relating to the wheat that was afterwards recovered would make it liable for its value. The delay in accounting for it and restoring it to the parties that were entitled to it was unreasonable, and the trial court, under the facts stated, would be authorized to render judgment against the railroad for the value of the wheat so recovered. For the reasons stated, the judgment will be reversed, and the cause remanded. Reversed and remanded.

On Rehearing. (March 3, 1902.)

Our reference in the original opinion to the case of Bolling v. Kirby (Ala.) 24 Am. St. Rep. 789 (s. c. 7 South. 914), was made for the purpose of directing attention to the authorities cited in the notes of the reporter to that case, to the effect that under a contract of shipment the carrier would not be held liable for the total value of the goods, where the negligence or the breach of the contract consisted merely in delay in transportation and delivery; that, in order to hold the carrier liable for the full value, the delay must be of such a character as would authorize the inference that the carrier had converted or appropriated the goods, or refused to account to the owners therefor. The cases referred to in the notes of the reporter were examined by us, and they were found to be in point upon this subject. Suppose that the plaintiffs in this case had sued the appellant, upon the same grounds stated in the petition, for the full value of the goods on the 7th day of September, prior to the storm that destroyed the property, and the carrier had tendered delivery in accordance with the

Gulf, C. & S. F. Ry. Co. v. Darby

contract upon that day; would the plaintiffs have been permitted, in view of this fact, to recover a judgment for the full value of the goods. We think, clearly not. The cause of action up to that time would have been simply for damages arising from the delay. If the suit had been to recover the total value of the property, with interest, the carrier could have defeated the action to that extent by tendering the goods to the consignee or the plaintiffs. This rule is virtually, in effect, conceded by all of the authorities that we have examined upon this subject, and it is not in conflict with the rule announced in Ryan v. Railway Co., 65 Tex. 18, 57 Am. Rep. 589, and Missouri Pac. Ry. Co. v. China Mfg. Co. (Tex. Sup.) 14 S. W. 785. Those cases hold that, where there is a clause in the contract exempting the carrier from liability by reason of events that may subsequently occur, the carrier will not be relieved from liability, where its negligence had a tendency to cause the occurrence which destroyed the property. There is absolutely no relation existing between the negligence of the carrier in this case in delaying the shipment and delivery, and the disastrous storm by which the property was partially destroyed. Of course, it is needless to say that the act of the carrier had no tendency whatever in producing the storm. That was an act over which the carrier had not, and could not, in the nature of things, have, any control whatever. It was an intervening cause with which the original negligence of the carrier was in no wise proximately connected. It was unforeseen, and could not, in the nature of things, have been guarded against. From the time that the carrier received the shipment, and from the time of its failure to deliver to the consignee, it could not certainly have anticipated that such a destructive storm would arise as would destroy the property, or prevent the carrier from complying with its contract by which it agreed to deliver the property in question to the consignee.

In subdivision 3 of the motion for rehearing, the appellees make this statement, in complaining of the opinion of this court: "Because it appears from the opinion that the court ignored the fact that this suit was brought to recover damages for breach of a special contract of shipment, in which appellant expressly undertook and agreed to notify the consignee, Texas Star Flour Mills, of the arrival of the wheat in Galveston; and it conclusively appears from the evidence that appellant held the wheat in Galveston for more than three days before the storm, and never notified consignee of its arrival, as it had contracted to do, when if it had done so, the appellees' draft for the value of the wheat would have been paid two days before the storm." We said in the original opinion that the plaintiffs' cause of action was, in effect, one of conversion, to recover the total value of the wheat. Whatever name may be given to the plaintiffs' cause of action, it is clear that a judgment rendered in such case would have the effect, and

First Nat. Bank of Pullman v. Northern Pac. Ry. Co

the action would be, in its nature, of the character named by us in the opinion. In determining what is the character of the cause of action, and what are the grounds that authorize recovery, we look to the plaintiffs' petition to ascertain these facts, and such was done in this case. The plaintiffs' petition states a case in which it was sought simply to recover the value of the property, based upon the failure of the railway company to promptly transport and deliver it to the parties to whom it was consigned at Galveston. There is not one word in the petition indicating or charging any breach whatever upon the appellant of a failure or refusal to notify the consignee of the arrival of the wheat. If the plaintiffs sought to base their cause of action upon the failure of the appellant to notify the consignee of the arrival of the wheat, they should have made some statement to this effect in their pleadings, but it was not done. We are not at liberty, in order to support the judgment of a trial court, to go outside of the record, and make a case not presented by the pleadings, although there might be some evidence bearing upon such a question.

We have given this case very careful examination, and are still of the opinion that the authorities cited in the notes to the case reported in 24 Am. St. Rep. (s. c. 7 South.) are in point; and, according to the case made by the pleadings of the plaintiffs, it is controlled by the decision of the court of civil appeals in Railroad Co. v. Bergman, 64 S. W. 999. The motion is overruled.

FIRST NAT. BANK OF PULLMAN v. NORTHERN PAC. RY. Co. (Supreme Court of Washington, April 25, 1902.)

[68 Pac. Rep. 965.]

Delivery of Goods—Production of Bill of Lading.*

Under commercial usage a carrier should deliver articles shipped only on production of bill lading, though it names the consignee. Same Same-Rights of Transferee.t

Under 1 Ballinger's Ann. Codes & St. & 3598, declaring a bill of lading negotiable, and that it may be transferred by endorsement of the party to whose order it was issued; and section 3603, declaring that a carrier is exonerated from liability for freight by delivery thereof to the holder of the bill of landing properly indorsed, or made in favor of the bearer; and section 3604, providing that when a carrier has given a bill of lading he may require its surrender before delivering the freight; and section 3600, providing that when a bill of lading is made to bearer, or in equivalent terms, a simple transfer by delivery conveys the title,—a

*As to delivery of goods without requiring presentation of bill of lading, see Nebraska Meal Mills v. St. Louis S. W. Ry. Co., 7 Am. & Eng. R. Cas., N. S., 591, and note at end of case.

†See generally, 1 Rap. & Mack's Dig. 645 et seq.; Gossler v. Schefeler, 5 Daly (N. Y.) 476; Morison v. Gray, 2 Bing. 260, 9 E. C. L. 405, 9 Moore 484. But see also, Waring v. Cox, 1 Comp. 369.

First Nat. Bank of Pullman v. Northern Pac. Ry. Co

bill of lading naming the shipper and consignee, and that the goods are to be shipped, to be delivered to the parties entitled thereto, having been delivered by the carrier to the shipper, and by him indorsed and delivered to a third person, such person can hold the carrier liable, it having delivered the freight to the consignee.

Appeal from superior court, Whitman county; William McDonald, Judge.

Action by the First National Bank of Pullman against the Northern Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Stephens & Bunn, for appellant.

W. J. Bryant and H. W. Canfield, for respondent.

REAVIS, C. J. Action by respondent, a bank, to recover the value of two consignments of wheat carried by the appellant railway company from Whelan to Spokane. The wheat was shipped by Chambers, the owner. The railway company delivered to Chambers two bills of lading exactly alike except in the quantity of wheat described therein, one of which is as follows:

"Copy 50 M.

Northern Pacific Railway Company.

S. & P. Division.

"No. Car, 10,230, N. P. Whelan, Wash., Aug. 25, 1898. "Received from W. M. Chambers, in apparent good condition: "Consignee and Destination. "Centennial Mill Co.

"Spokane, Wash.

Description of property.

360 sax wht.

Weight. 47,520.

"As described above, contents and value unknown, to be transported by the Northern Pacific Railway to station Spokane, ready to be delivered to the parties entitled to the same, and it is expressly stipulated and agreed that the above property is transported on the conditions indorsed hereon, which form part of this contract, and of the consideration for carrying the same, and not otherwise.

"No. 3.

"Northern Pacific Railway, By J. S. Keeney, Agent."

The case was tried by the court without the intervention of a jury. The railway company, defendant, carrier, set up some matters affirmatively in defense. This portion of the answer was stricken before trial, and error is assigned upon such ruling of the court. But, as this defense went to the construction and effect of the bills of lading, the error will be considered in the determination of the merits on the facts as found. These are that Chambers was the owner of the wheat, and consigned the same to the Centennial Mill Company at Spokane, and that no other names appeared in the bill of lading than "Chambers" and "Centennial Mill Company;" that Chambers, upon the shipment, sold, assigned, transferred, and set over the bills of lading to the bank by indorsing his name on the back thereof, for the actual consideration of the purchase price of the wheat, which was paid in cash to Chambers, and which Chambers used to pay for the purchase of the wheat, and that plaintiff is the owner of the bills of lading and entitled to the delivery of the wheat; that

First Nat. Bank of Pullman v. Northern Pac. Ry. Co defendant carried the wheat to Spokane, and, without any order or authority of plaintiff or Chambers, and without demanding or receiving a surrender of the bills of lading, wrongfully delivered the same to the Centennial Mill Company; that before the commencement of the action plaintiff demanded of defendant the delivery of the wheat, which delivery was refused. It was further found that in the spring of 1898 Chambers, Price & Co., doing business at Pullman, contracted to ship to the Centennial Mill Company a certain number of bushels of No. I wheat; that the wheat, when shipped, was subject to inspection at the terminal by the mill company, and was also subject either to rejection or dockage in weights and grades; that Chambers, Price & Co., pursuant to the contract, had shipped a sufficient number of bushels of grain to fill their contract with the mill company, but by reason of dockage and discount for claimed shortage in weights and deficiencies in quality the mill company claimed a balance due in money in the sum of $665.58; that thereafter, in July, 1898, Chambers, who was a former partner of the firm of Chambers, Price & Co., the said firm having become insolvent, and having been theretofore dissolved, agreed with the mill company to carry out the firm contract of Chambers, Price & Co., and himself shipped the amount of grain necessary to fill the amount agreed to be delivered to the mill company at Spokane, and it was then agreed between Chambers and the mill company that he should draw against said shipments 50 to 55 cents per bushel in money to cover the purchase price of said grain, and no more; that Chambers and the Centennial Mill Company had, during a term of years, and it was the fixed and established custom between them, for Chambers, as shipper and vendor, to draw drafts through a banking house for the price of the commodities so shipped, and to attach the bills of lading thereto, and at the time of the transaction in controversy Chambers had no notice of any repudiation thereof, or of any change on the part of the Centennial Mill Company, in said settled course of business between them; that plaintiff, upon the receipt of the bills of lading and a draft upon the Centennial Mill Company for the price of the wheat, forwarded such bills of lading, with the draft attached, for collection from the mill company, but the mill company refused to receive the bills of lading or pay the draft, and they were returned to plaintiff; that at the time of the delivery of the wheat to the mill company it knew that plaintiff held the draft and bills of lading. The court concluded that the refusal of defendant to deliver the wheat to plaintiff on presentation of the bills of lading was conversion, and found the value of the wheat, and gave judgment in favor of plaintiff against the defendant for such amount.

1. The principal controversy between counsel is the function and construction of the bills of lading. It is urged by counsel for appellant that, if there be no reservation by the

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