Branch & Pope v. Wilmington & Weldon R.R. Co.

• Decision Date: 28 February 1883
• Citation: 88 N.C. 573
• Court: North Carolina Supreme Court
• Parties: BRANCH & POPE v. WILMINGTON & WELDON RAILROAD COMPANY.

88 N.C. 573

BRANCH & POPE

v.WILMINGTON & WELDON RAILROAD COMPANY.

Supreme Court of North Carolina.

February Term, 1883.

CIVIL ACTION tried at Fall Term, 1882, of HALIFAX Superior Court, before McKoy, J.

The defendant appealed.

Messrs. Mullen & Moore, for plaintiffs .

Messrs. Gatling & Whitaker and Day & Zollicoffer, for defendant .

SMITH, C. J.

The plaintiffs, on December 28, 1881, delivered to the defendant's agent at the depot of the company, in Enfield, twenty bales of lint cotton for transportation over its road and a connecting line, consigned to commission merchants in Norfolk, Virginia, and they remained in the defendant's warehouse until the 7th of January, 1882, before being sent off in the company's cars.

The bill of lading or receipt given to the plaintiffs, at the time of the deposit with the agent, contains a clause that the cotton is received “for transportation at company's convenience,” and this was accepted by the plaintiffs.

The action is to recover the penalty given by the act of 1874-'75, ch. 240, § 2, for allowing freight received for shipment to remain unshipped for more than five days, unless a contrary agreement be entered into, and the defence set up in the answer is, that “as soon as the defendant could provide the necessary cars, the said cotton was forwarded to the consignees, and that owing to the large amount of cotton and other freight delivered to the defendant for transportation at that season, it was impossible to ship the cotton at an earlier date.”

The record states that all the issues, not setting them out, were found by the jury in favor of the plaintiffs, and this defect the counsel undertake to supply by a written agreement, signed by both, that the issues were the same as those in the record of the appeal in ^a1 Bell v. W. & W. Railroad Co., at this term, except as to the number of days in the third issue. We cannot recognize this method of amending the record, requiring the court to look into the transcript of another case to obtain the information necessary in deciding the appeal in this. That, counsel by consent are permitted to do, and then the record is itself corrected.

We must, therefore, consider the issues submitted to the jury to be such as arise upon, and are eliminated from the pleadings, and among them that raised in the concluding paragraph of the answer, alleging in excuse the inability of the defendant to provide cars for transportation sooner.

To combat the defence, resting upon a loose and imperfect statement of facts in explanation and excuse for the delay, one of the plaintiffs was examined on their behalf, and permitted,...