American Ry. Express Co. v. Henderson

• Decision Date: 18 March 1926
• Docket Number: 6 Div. 619
• Parties: AMERICAN RY. EXPRESS CO. v. HENDERSON.
• Court: Alabama Supreme Court

107 So. 746

214 Ala. 268

AMERICAN RY. EXPRESS CO. v. HENDERSON.

6 Div. 619

Supreme Court of Alabama

March 18, 1926

Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.

Action by Aleene Henderson against the American Railway Express Company. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Code 1923, § 7326 Affirmed.

Bradley Baldwin, All & White, of Birmingham, for appellant.

C.E Wilder and G.M. Edmonds, both of Birmingham, for appellee.

MILLER J.

This is a suit by Aleene Henderson against the American Railway Express Company for damages for the conversion of a perspective drawing in water colors of a schoolhouse, which was delivered to defendant in Birmingham by plaintiff consigned to F.H. Trimble in Orlando, Fla., to be delivered to the consignee "C.O.D. $100." There were four counts in the complaint. The first count charges a conspiracy and collusion between the consignee, Trimble, and the defendant, to deliver the drawing to consignee, and the consignee to pay it $100 therefor, and then immediately for the consignee to have this $100 of plaintiff garnisheed in Florida while in its possession to the loss and damage of plaintiff. Counts 2 and 3 are in trover for the conversion by the defendant of this perspective water color drawing, the property of plaintiff. Count 4 is for money had and received. The defendant pleaded in short general issue, with leave to give in evidence any matter which, if well pleaded, would be admissible in defense of the action, and with leave to the plaintiff to give in evidence any matter, which, if well pleaded, would be admissible in reply to such defensive matter. The jury returned a verdict in favor of the plaintiff, and from a judgment thereon by the court this appeal is prosecuted by the defendant.

This drawing was delivered by the plaintiff to the defendant in Birmingham, Ala., on the 18th of May, 1922, to be delivered C.O.D. $100 to F.H. Trimble, in Orlando, Fla. When this shipment was delivered to the defendant, plaintiff orally instructed the defendant not to deliver or allow inspection of the perspective drawing by the consignee until and unless the sum of $100 was paid therefor. Upon the arrival of the drawing in Orlando, Fla., the defendant permitted the consignee, an architectural draftsman, to examine the drawing without then and there paying for the same, contrary to the oral instructions given by plaintiff to the defendant. The consignee after inspection declined to accept it because not made in accordance with instructions. The plaintiff and consignee, prior to making this shipment, had a contract by which plaintiff was to make said drawing as it was made, and consignee was to pay $100 for it in cash, without inspection and before delivery to him, when it reached Orlando, Fla., consigned to him. There was evidence tending to show that--

"The consignee, Trimble, as an architectural draftsman knew immediately upon examination by viewing the drawing whether the plans from which the drawing was made were satisfactory to him. The drawing was of no further use to him. It was then likewise useless to appellee."

This shipment was C.O.D. as was evidenced by a receipt contract. It failed to state anywhere thereon the oral instructions given defendant:

"Not to make delivery or allow inspection of the drawing until and unless $100 C.O.D. had been paid."

The receipt does state in writing that--

The defendant "agrees to carry upon the terms and conditions of its regular form of receipt printed on back hereof to which the shipper agrees and as evidence thereof accepts and signs this receipt."

In the terms and conditions on the back of the receipt, we find the following:

"Unless caused by its own negligence or that of its agents the company shall not be liable for *** the examination by or partial delivery to the consignee of C.O.D. shipments."

The plaintiff accepted that receipt containing that agreement in writing. If plaintiff still insisted, and desired the C.O.D. package should be carried, and that it must not be delivered or inspected until and unless the $100 C.O.D. had been first paid, then she should have refused the receipt and contract as written, and insisted on the contract being so written as to carry out her instructions and object. This she failed to do. She kept the receipt with the contract terms as evidence thereof, which were contrary to her oral instructions. This is in part a receipt, and in part a written contract. The written contract part thereof expressly states the defendant shall not be liable for the examination of the C.O.D. shipment by the consignee, unless caused by its own negligence or that of its agents. These written terms in this contract cannot now be altered or varied by parol. See Smith v. Southern Express Co., 16 So. 62, 104 Ala. 387, which is almost directly in point. Gravlee v. Lamkin, 24 So. 756, 120 Ala. 210. In the case of Jones Cotton Co. v. Snead. 53 So. 988, 989, 169 Ala. 569, this court wrote:

"The truth and law of the whole matter is it is not, strictly speaking, a complete or entire contract. In part, it is a receipt for the cotton and for part of the price therefor--this, from the mere recitals of that part of the contract which was executed--and, in part, the recital or written evidence of an executory contract. In so far as it was a receipt, it was of course governed by the law regulating receipts--that is, it was open to contradiction or explanation by parol proof; and, in so far as it was a contract, it was governed by the law of written contracts, and could not be contradicted or varied by contemporaneous proof. Gravlee v. Lamkin, 24 So. 756, 120 Ala. 210; Smith v. Southern Express Co., 16 So. 62, 104 Ala. 387."

"Where the consignee fails or refuses to receive the shipment, it is the duty of the carrier to store the goods shipped, either in its own warehouse or in that of some responsible third party, and to hold the goods subject to the order of the consignor for a reasonable time." 10 C.J. 269, § 386, headnotes 19, 20; Louisville & N.R. Co. v. Roden, 96 So. 912, 209 Ala. 694; L. & N.R. Co. v. Brewer, 62 So. 698, 183 Ala. 172.

In this cause the consignor, the plaintiff, refused to receive from the defendant the shipment. This drawing was delivered by plaintiff to defendant on May 18, 1922. The defendant permitted the consignee to inspect it at Orlando, Fla., on May 21, 1922. The drawing was declined by the consignee, on May 22, 1922. The plaintiff refused in writing on May 25, 1922, to accept the drawing, which was offered to be returned to her by the defendant. The plaintiff filed on May 31, 1922, her claim for $100 damages against defendant with it. The defendant's claim agent Davidson wrote a letter to the plaintiff's attorney on May 18, 1922, a part of which reads as follows:

"No doubt the consignee would be willing to pay the amount of the C.O.D. to us at this time as a matter of protection to this company, still the chances are that he would attach the amount as soon as paid, and which, of course, would be of no benefit to the shipper. If the amount had been collected in the first place, it probably would have been attached before we could have forwarded it to the shipper, as is done in many such cases. Therefore I hardly think the shipper would be justified in attempting to collect the amount of C.O.D. for something which was entirely unsatisfactory and not made in accordance with original instructions. Consignee, as I understand is entirely reliable, and I would suggest that you handle direct with the consignee in an effort to reach some definite understanding, as surely our act in permitting the examination could not make us liable for the amount of C.O.D. Therefore I think it is in order for you to withdraw your claim as far as this company is concerned."

The consignee on August 4, 1922, accepted from the defendant this drawing and paid it $100 C.O.D. and carriage charges thereon. The consignee on that day, August 4, 1922, made affidavit for writ of garnishment, and procured a writ of garnishment from the clerk of the circuit court of Orlando county, Fla against the defendant in a cause wherein consignee was plaintiff and Aleene Henderson and her husband were defendants in said circuit court in Florida. This express company was served with this writ of garnishment on the next day, August 5, 1922, and on August 29, 1922, filed its answer in that court admitting that it was justly indebted to Aleene Henderson in the sum of $100. The plaintiff's attorney was notified by the defendant of this garnishment writ being served on it, and this writ, with notice of time of its service, was given to plaintiff's attorney by the defendant on August 17, 1922. Notice of this suit in Florida circuit court was given plaintiff by publication in a newspaper in Orlando county, Fla. The plaintiff, Aleene Henderson, did not appear in that cause in the Florida court, and made no defense to it. On December 4, 1922, default for want of appearance was entered by the clerk of this circuit court in Florida against Aleene Henderson and her husband. There was no declaration or complaint filed against Aleene...