Clarke-lawr Ence Co v. Chesapeake & O. Ry. Co

• Decision Date: 28 January 1908
• Citation: 63 W.Va. 423,61 S.E. 364
• Parties: CLARKE-LAWR ENCE CO. v. CHESAPEAKE & O. RY. CO.
• Court: West Virginia Supreme Court

63 W.Va. 423

61 S.E. 364

CLARKE-LAWR ENCE CO.

v.CHESAPEAKE & O. RY. CO.

Supreme Court of Appeals of West Virginia.

Jan. 28, 1908.

Rehearing Denied May 1, 1908.

1. Carriers—Loss of Freight—Action by Consignee—Defenses.

A rejected compromise proposition made to a consignee of goods by a person to whom they have been wrongfully delivered by the carrier for the purchase thereof and payment of a profit on the same neither bars an action against the carrier for breach of its contract nor works a mitigation of the damages.

2. Same—Demand for Goods.

Demand for goods wrongfully delivered by a common carrier is not a prerequisite to the maintenance of an action for breach of the contract.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 9, Carriers, § 369.]

3. Same—Limiting Liability.

A contract limiting the liability of a common carrier to a certain amount in case of loss of or injury to the goods in consideration of a reduced freight rate does not limit the recovery in case of a delivery of the property to a wrong person, since a wrongful delivery is deemed not to have been within the contemplation of the parties.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 9, Carriers, §§ 698-710.]

4. Same—Damages—"Conversion."

A wrongful delivery by a common carrier is technically a conversion of the goods, and the measure of damages is the value of the goods at the place stipulated for delivery, and interest thereon from the date on which the delivery should have been made; but if the goods be reclaimed by the carrier and tendered or delivered to the consignee, or the proceeds thereof paid to him, such tender, delivery, or payment will mitigate the damages.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 9, Carriers, §§ 389-393.

For other definitions, see Words and Phrases, vol. 2, pp. 1562-1569; vol. 8, p. 7618.]

5. Same.

If goods intrusted to a common carrier for shipment have been sold in advance of delivery for use on a special occasion, and in view of peculiar and unusual conditions, at prices yielding profit, and such expected profit is lost by reason of delay in carriage or a wrongful delivery, it is not recoverable as part of the damages, unless the carrier had knowledge of the existence of the contracts, or the special purpose for which the goods had been purchased and shipped.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 9, Carriers, §§ 389-393.]

(Syllabus by the Court.)

Error from Circuit Court, Fayette County.

Action by the Clarke-Lawrence Company against the Chesapeake & Ohio Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.

Simms & Enslow and R. M. Baker, for plaintiff in error.

Osenton & McPeak, for defendant in error.

POFFENBARGER, P. On an agreed statement of facts in a case carried into the circuit court of Fayette county by appeal from the judgment of a justice of the peace, a judgment was rendered in favor of the Clarke-Lawrence Company against the Chesapeake & Ohio Railway Company, of which the latter complains.

The agreed facts are substantially as follows: The plaintiff, a wholesale mercantile company, having negotiated sales to its customers of a car load of water melons for their Fourth of July trade in the year 1904, ordered the melons from the Meonia Produce Company, of Richmond, Va., and they were shipped from that place over the Chesapeake & Ohio Railway, on June 30, 1904, under a consignment to the Clarke-Lawrence Company, at Thurmond, W. Va. In consideration of a reduced rate a bill of lading was signed, containing, among other stipulations, one limiting the liability of the company to $100 for all loss or damage that might occur to the melons from any cause. The car was promptly started from Richmond and arrived at Hinton on the 1st day of July, 1904, by a freight train, which arrived at Thurmond on the same day. The Montgomery Supply Company had also ordered a car of melons from the Meonia Produce Company, and while the car in question here was in transit, and after it had passed Clifton Forge, Va., bound westward, T. H. Norman, a representative of the Montgomery Supply Company, applied at Clifton Forge for his car, and was informed by the yardmaster that a car load of melons from the Meonia Produce Company was then on the road between Clifton Forge and Hinton. Thereupon the yardmaster at Clifton Forge gave Norman the number and description of that car, and wired the yardmaster at Hinton to turn it over to Norman. Pursuant to these instructions the car was stopped at Hinton and delivered to Norman, who began selling the melons at that place, and continued to do so from place to place along the line of the railroad until it reached Thurmond, when he had disposed of about 150 melons. He arrived at Thurmond with the car on Sunday, the 3d day of July, and on the same day a representative of the Clarke-Lawrence Company examined the car and found that it was the one which had been consigned to that company, and not the car intended for the Montgomery Supply Company. Thereupon Norman offered to pay Clarke, the representative of the Clarke-Lawrence Company, the sum of $50, and take the car off of his hands, which proposition Clarke declined, saying he had contracted the sale of the melons at a profit greater than $50, and would make more than that out of the railroad company. On the next day Norman had another conversation with Clarke, in which he stated the circumstances under which he had obtained possession of the car, and offered to pay Clarke $40 and take it off of his hands, which proposition also Clarke declined. On the 5th day of July it was agreed between the Clarke-Lawrence Company and a division superintendent of the railway company that the former should take charge of the car and sell the melons to the best advantage for the railway company, which was done, and the sum of $155.13 realized, which was $104.87 less than the cost of the car and expenses of sale. The Clarke-Lawrence Company suffered a loss of profits which it would have realized on the transaction if it had received the car in time to comply with its contracts of sale amounting to $182, which, added to the $104.87 above mentioned, made its total loss $286.87, the amount of the judgment rendered.

The assignments of error are predicated upon the following propositions: First, that the plaintiff could have disposed of the melons at a profit of $50 by accepting the proposition of the Montgomery Supply Company; second, no demand was made upon the railway company for the property, and delivery thereof was not refused; third, as the shipment had been made under a contract limiting liability, profits which would have been made on sales were not recoverable as damages, since such damages were special, and the carrier had had no notice of the special purpose for which the shipment was intended; and, fourth, in view of the limitation clause, no more than $100 was recoverable.

In response to the first proposition, it is to be observed that there was no tender of the property by the railway company, accompanied by an offer of $50 for profit on the car. The car was on the tracks of the carrier company, but as containing property of the Montgomery Supply Company, and had been so carried from place to place. The carriage had been for and on account of that company, and the contents treated as its property. That company, after having disposed of a considerable portion of the property, attempted to effect a composition with the real owner thereof by purchase of what remained and payment for what had been sold, so as to make the owner whole and give a profit. The proposition was one of purchase, which the consignee was under no duty to accept, not one of compliance with, or fulfillment of, the contract of carriage. If we could say, in view of the situation of the parties and all the circumstances, the railway company was a party to the offer, or had procured the making thereof, it would still be merely a rejected offer of compromise, signifying nothing, and binding nobody. The tender of delivery, if any, embraced in the...