C. v. Browne
| Decision Date | 09 June 1923 |
| Docket Number | 24,605 |
| Citation | 216 P. 299,113 Kan. 726 |
| Parties | C. V. BROWNE, Appellant, v. THE UNION PACIFIC RAILROAD COMPANY, Appellee |
| Court | Kansas Supreme Court |
Decided January, 1923.
Appeal from Shawnee district court, division No. 2; GEORGE H WHITCOMB, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. INTERSTATE COMMERCE--Date of Bill of Lading No Part of Description of Goods Shipped--Liability of Carrier to Innocent Holder of Misdated Bill of Lading. The dating of an interstate shipper's order bill of lading is not part of the description of the goods mentioned therein, and the federal act of June 5, 1916 (39 U.S. Stat. ch. 415, p. 538), has not changed the rule announced in Atchison & Topeka Ry. v. Harold, 241 U.S. 371, 60 L.Ed. 1050, 36 S.Ct. 665, touching an innocent holder's right of action against the issuing carrier for misdating such order bill.
2. SAME--Demurrers to Defenses. Other matters pleaded in defense considered, and held, not subject to demurrer.
J. Graham Campbell, and Ray Campbell, both of Wichita, for the appellant.
T. M. Lillard, Bruce Hurd, and O. B. Eidson, all of Topeka, for the appellee.
The plaintiff brought this action for damages sustained through his reliance on erroneous datings on four shipper's order bills of lading issued by defendant.
The plaintiff, a grain dealer of McKinney, Texas, alleged on October 18, 1920, he bought 10,000 bushels of wheat from the Ed Past Grain Company of Denver, Colo., at $ 2.36 per bushel, to be shipped on or before November 2, 1920, but the time was extended until November 9, 1920. Plaintiff gave the grain company instructions to ship the wheat to Whitewater, Texas, via defendant's railway and another. Separate shipper's order bills of lading for each of four cars of this wheat were issued at Denver by the defendant railroad company. On October 30, 1920, plaintiff sold 5,000 bushels of this wheat to the Gladney Milling Company, of Sherman, Texas, shipment to be made by November 9, 1920, and billed to Sherman. The Ed Past Grain Company presented to plaintiff four sight drafts with the four shipper's order bills of lading attached, each of which recited receipt of a carload of wheat by defendant. Plaintiff paid these drafts and received the bills of lading. He alleged that he relied on the recitals in the bills of lading, which had been signed by defendant's agent, and that he would not have paid the drafts and would not have taken up the bills of lading had they not shown that the cars were shipped by November 9, 1920. Plaintiff then tendered the four bills of lading to the Gladney Milling Company pursuant to his sale of 5,000 bushels of wheat to that company, but the latter refused to accept them and refused to accept the four cars of wheat, on the ground that the bills of lading were incorrectly dated and that the wheat had not been shipped as represented thereon, or by November 9, 1920, and were therefore inapplicable on plaintiff's contract of sale with the Gladney Milling Company. Consequently, plaintiff had to sell the wheat at a loss, by which he sustained damages. The alleged inaccuracies in the bills of lading were--
On B/L for car G. N. # 17527, it was recited:
Plaintiff alleged that this order bill should have shown that it was issued at Denver, Colo., November 22, 1920, in exchange for bill of lading issued at Ogden, Utah, November 19, 1920.
On B/L for C. P. # 72066, it was recited:
Plaintiff alleged that this order bill should have shown that it was issued at Denver, Colo., November 24, 1920, in exchange for bill of lading issued at Ogden, Utah, November 19, 1920.
On B/L for M. C. # 62632, it was recited:
Plaintiff alleged that this order should have shown that it was issued at Denver, Colo., November 24, 1920, in exchange for bill of lading issued at Ogden, Utah, November 19, 1920.
On B/L for W. A. B. # 75411, it was recited:
Plaintiff alleged that this order bill should have shown that it was issued at Denver, Colo., November 22, 1920, in exchange for bill of lading issued at Ogden, Utah, November 19, 1920.
The defendant answered, admitting plaintiff's contracts of purchase and sale, but alleging, in substance--
Second: That under the terms of his contract with the plaintiff the Past Company was bound to accept the shipments regardless of dating of bills of lading.
Third: That defendant, at the time its Denver agent signed the bills of lading, had no knowledge of any contract between plaintiff and the Past company, or between plaintiff and the Gladney Milling Company either specific or by reason of custom or usage, and that it did not and could not know that any special reliance would be placed by anyone on the dating of the bills of lading.
Fourth: That if the Denver bills of lading were misdated this was done by the Past grain company who prepared the forms, presenting them to the carrier for signature only; that it was without the scope of authority of defendant's agent to bind the company by signing bills of lading containing any false statements; that such bills described the shipments accurately, stated the weight thereof correctly, and that the shipments were carried through to destination promptly and were fully delivered to the order of plaintiff at destination.
Fifth That had plaintiff awaited the arrival of the shipments at destination before taking up the drafts he would have been fully informed of the original points of origin of the shipments in Idaho and the dating of the Ogden, Utah, bills by notations on the statements for freight charges which would have been presented to him for payment in usual course. That in any event the plaintiff should have been warned of the probability of misdating of the...
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