Central of Georgia Ry. Co. v. Dothan Nat. Bank

• Decision Date: 13 October 1921
• Docket Number: 4 Div. 913.
• Parties: CENTRAL OF GEORGIA RY. CO. v. DOTHAN NAT. BANK.
• Court: Alabama Supreme Court

91 So. 351

206 Ala. 602

CENTRAL OF GEORGIA RY. CO. v. DOTHAN NAT. BANK.

4 Div. 913.

Supreme Court of Alabama

October 13, 1921

Rehearing Denied Nov. 17, 1921.

Appeal from Circuit Court, Houston County; H. A. Pearce, Judge.

Action by the Dothan National Bank against the Central of Georgia Railway Company, for a breach of contract, in failing to deliver or in delivering without surrendering the bill of lading, a certain carload of cotton seed meal. Judgment for the defendant, and the plaintiff appeals. Affirmed.

The fact that a bank had a draft indorsed and delivered to it with bill of lading attached, presented for payment before or after the carrier's unauthorized delivery of the shipment, or whether with or without notice of said delivery did not operate as a ratification thereof so as to preclude the bank from maintaining action against the carrier for failure to deliver or in delivering without surrender of the bill of lading.

The complaint alleges that the Boston Oil Mill Company purchased a carload of cotton seed meal from the Planter's Cotton Oil Company, and consigned it to the Boston Oil Mill Company at Richmond, Va., delivering it with the Central of Georgia Railway Company, taking its bill of lading therefor, order notify Boston Oil Mill Company, Richmond, Va., and in payment of the Planter's Cotton Oil Company, drew its draft on the Boston Oil Mill Company, of Richmond, Va., for the price of the cotton seed meal, and attached the bill of lading to the draft, and the Planter's Cotton Oil Company sold indorsed, and delivered to the Dothan National Bank said bill of lading and draft.

The following are the special pleas referred to:

(2) Further answering in said cause, the defendant says that this suit is for recovery of the value of one car of cotton seed meal, shipped by the Boston Oil Mill Company, from Dothan Ala., on July 13, 1917, to its order, at Richmond, Va., upon a bill of lading issued by defendant, upon which lading it was directed that the Richmond Guano Company of Richmond, Va., be notified, to which said bill of lading was attached a sight draft on the said Richmond Guano Company, which lading and draft was indorsed to the plaintiff bank and by plaintiff bank forwarded, through its banking correspondents, for collection; that said car of meal was intended for and had been sold by said Boston Oil Mill Company to said Richmond Guano Company and was transported over the lines of the defendant to the connecting lines of the Seaboard Air Line Railroad Company, and by the latter railway company transported to the city of Richmond, Va., and there delivered to the said Richmond Guano Company, for whom it was intended and to whom it had been sold as aforesaid; that said draft and lading forwarded as aforesaid for collection was delayed in reaching said city of Richmond, Va., and, to effect prompt delivery of said car of meal, the said Seaboard Air Line Railway Company allowed the said Richmond Guano Company to deposit in cash, with the said railway company, the invoice price of said meal to wit, $1,465.57, to protect said draft when it should arrive and to protect the said railway company in the delivery thereof, and upon deposit of the said sum with and for the purpose aforesaid, the said Seaboard Air Line Railway Company delivered said car of meal to said Richmond Guano Company; and defendant avers that, before the arrival of said draft and lading, said money representing the value of said car of meal being then in the jurisdiction of the circuit court of the city of Richmond, Va., the said Richmond Guano Company sued out its process of attachment in said circuit court of Richmond, Va., in its behalf as plaintiff, and against the said Boston Oil Mill Company, as defendant, and procured a writ of garnishment thereon and caused the same to be served on said Seaboard Air Line Railway Company and L. R. Goulder, agent of the said railway company, and L. R. Goulder individually, returnable to said court; that said Seaboard Air Line Railway and the said L. R. Goulder duly answered the mandate of said writ, admitting indebtedness in the aforesaid sum of $1,465.57 to said Boston Oil Mill Company, and the possession of said sum of money aforesaid, and suggested in their said answers in said cause that the Dothan National Bank, of Dothan, Ala., the plaintiff in this suit, claimed the said money garnished and asked that an order be made by said court directing notice to the said Dothan National Bank, of Dothan, Ala., to appear and prove or relinquish its claim to said money; whereupon the said court ordered that notice issue and be served on the said Dothan National Bank, of Dothan, Ala., the plaintiff in this suit, to appear by a date named in said order and prove or relinquish its said claim to said money, which notice was duly issued and served on said bank by personal service on the president of said bank, which service was in conformity with, and authorized by, the laws of said state of Virginia, and required said bank to appear in said cause and prove or relinquish its said claim; that said plaintiff bank failed to appear in said cause after notice as aforesaid, and the court thereupon rendered and entered the following judgment in said cause, to wit:

"And now at this day, to wit, at a circuit court of the city of Richmond, held in the courtroom in said city in the city hall thereof, on Tuesday, the 4th day of February, 1919 (being the day and year first herein written), upon an attachment, this day came again the plaintiff by its attorney, and it appearing from the answer of the Seaboard Air Line Railway Company, filed February 8, 1918, to the attachment issued herein, that it had in its hands subject to said attachment, the sum of $1,465.67, but claimed by the Dothan National Bank, of Dothan, Ala., and it appearing that the plaintiff recovered a judgment against the defendant for $1,915.68, on the 7th day of February, 1918, and it further appearing that the claimant the Dothan National Bank, of Dothan, Ala., was personally served on the 16th day of February, 1918, with a copy of the order entered herein, on the 8th day of February, 1918, requiring it to appear here on the 11th day of March, 1918, and maintain or relinquish its said claim, and said claimant failing to appear as directed, it was ordered that the Seaboard Air Line Railway Company do pay to the plaintiff, or S. S. P. Patterson, its attorney, the said sum of $1,465.67, to be a credit upon the plaintiff's judgment, upon the execution of a bond with good security in the penalty of $3,000, conditional to perform such further orders of the court, on the appearance of the defendant and its making defense."

The defendant hereto attaches a true and exact copy of all the proceedings in the said circuit court of the city of Richmond, had and done in the cause of Richmond Guano Company, as plaintiff, and Boston Oil Mill Company, as defendant, Seaboard Air Line Railway Company and L. R. Goulder, garnishees, from the initiation of said suit to the conclusion thereof, marks the same Exhibit A and makes the same a part of this plea, as if specially set out herein. And the defendant avers that the said circuit court of said city of Richmond, Va., was a court of competent jurisdiction to entertain, try, and dispose of said suit, and had jurisdiction of the parties and of the subject-matter involved in said suit, and, at the time of the institution of said suit, and the rendition and entry of judgment therein, there was of force in said state of Virginia, as a part of the laws thereof, the following laws, to wit:

"An act to amend and re-enact section 2959 of the Code of Virginia in reference to attachments. Approved February 20, 1892.

"1. Be it enacted by the General Assembly of Virginia, that section 2959 of chapter 141 of the Code of Virginia be amended and re-enacted so as to read as follows:

"Sec. 2959. When and for What Attachment may be Sued out; By Whom Issued; The Affidavit Required; Who may Make It; Grounds for Attachment.-If at the time of, or after the institution of any action at law for the recovery of specific personal property, or a debt, or damages for the breach of a contract, express or implied, or damages for a wrong, the plaintiff, his agent or attorney, shall make affidavit, stating that the plaintiff's claim is believed to be just, and where the action is to recover specific personal property, the nature and, according to the affiant's belief, the value of such property, and the probable amount of damages the plaintiff will recover for the detention thereof, and where it is to recover a debt or damages for the breach of a contract, express or implied, or damages for a wrong, a certain sum which (at the least) the affiant believes the plaintiff is entitled to or ought to recover, and stating also the existence, to the best of the affiant's belief, of one or more of

the following grounds for attachment: That the defendant, or one of the defendants-

"First. Is a foreign corporation, or is not a resident of this state and has estate or debts owing to said defendant within the county or corporation in which the action is, or is sued with a defendant residing therein, or that the defendant, being a nonresident of this state, is entitled to the benefit of any lien, legal or equitable, on property, real or personal, within the county or corporation in which the action is, and the word estate, as herein used, shall include all rights of interests of a pecuniary nature which can be protected, enforced, or proceeded against in courts of law or equity; but this provision as to equitable estates and interests so far as amendatory of existing laws shall not apply to attachments sued out before the passage of this act. This section, as...