58 So. 994 (Ala.App. 1912), Greek-American Produce Co. v. Illinois Cent. R. Co.

Citation:58 So. 994, 4 Ala.App. 377
Opinion Judge:DE GRAFFENRIED, J.
Party Name:GREEK-AMERICAN PRODUCE CO. v. ILLINOIS CENT. R. CO.
Attorney:[4 Ala.App. 378] S. B. Stern and J. A. Mitchell, both of Birmingham, for appellant. [4 Ala.App. 379] Percy, Benners & Burr, of Birmingham, for appellee.
Case Date:May 09, 1912
Court:Alabama Court of Appeals
 
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Page 994

58 So. 994 (Ala.App. 1912)

4 Ala.App. 377

GREEK-AMERICAN PRODUCE CO.

v.

ILLINOIS CENT. R. CO.

Court of Appeals of Alabama

May 9, 1912

Appeal from City Court of Birmingham; C. W. Ferguson, Judge.

Action by the Greek-American Produce Company against the Illinois Central Railroad Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

[4 Ala.App. 378] S. B. Stern and J. A. Mitchell, both of Birmingham, for appellant.

[4 Ala.App. 379] Percy, Benners & Burr, of Birmingham, for appellee.

DE GRAFFENRIED, J.

1. The appellant brought this suit against appellee to recover damages because of an alleged delay by the appellee in delivering to the appellant a car load of grapes, which were shipped from Derby, Mich., to T. O. Milton, at Birmingham, Ala. Milton was the agent of appellant, and the car load of grapes belonged to appellant, and were ordered by Milton for appellant; but these facts were not known to appellee. Milton's business office adjoined that of appellant in the same building; and during the period covered by this controversy Milton was in Birmingham and at his usual place of business. The situation of the parties was such that it is plainly inferable that, if notice of the arrival of the grapes in Birmingham had been given Milton, the appellant would at once have been informed of that fact.

Under the terms of section 5604 of the Code of 1907, railroad companies are required to give notice, by mail or otherwise, to the consignee of the arrival of shipments, together with the weight and freight charges thereon. In the instant case Milton was the consignee named in the bill of lading, and he was the party to whom this section cast the duty upon the appellee of giving the required notice. While the grapes were shipped from Michigan to Alabama, and the shipment was therefore an interstate shipment, the delivery was to be made in Alabama; and, in so far as the mere subject of delivery [4 Ala.App. 380] is concerned, the shipment was governed by the laws of Alabama. So. Ex. Co. v. Gibbs, 155 Ala. 303, 46 So. 465.

When a statute prescribes a duty, and a contract is made involving the performance of that duty, such statute becomes a part of the contract. This proposition is

Page 995

well recognized and needs no citation of authority to sustain it. As the above statute provides that the notice required to...

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