Coal v. Coal
| Decision Date | 07 December 1915 |
| Docket Number | No. 92.,92. |
| Citation | 77 W.Va. 309 |
| Court | West Virginia Supreme Court |
| Parties | Coal & Coke Ry. Co. v. Buokhannon River Coal & Coke Co. |
1. Carriers Shipment of Goods Liability for Freight.
A consignor who signs a bill of lading on his own account, and not as agent for the consignee, is liable to the carrier for the freight, although title to the goods passed to the consignee on delivery to the carrier, (p. 311).
2. Same.
Neither the words, "Freight collect from consignee," written in the face of a bill of lading, nor a printed condition on the back thereof, stating, "The owner or consignee shall pay the freight," are alone sufficient to relieve the consignor from liability. Such provisions are for the benefit of the carrier and do not constitute a special contract with the consignor, (p. 312).
3. Same Shipment of GoodsLiability for Freight Release.
The carrier does not, by waiving its lien and delivering the goods to the consignee before payment of freight, release the consignor from liability. In the absence of a special contract, both consignor and consignee, who has accepted the goods, are liable to the carrier, (p. 312).
4. Same.
After a sale and delivery to the carrier by the consignor, the owner may reconsign the goods without releasing the consignor, provided his liability is not thereby increased, (p. 313).
5. Same.
The consignee's being under bond to the terminal carrier to pay the freight, does not affect the consignor's liability on his contract with the initial carrier for tHe joint freight charges, (p. 313).
Error to Circuit Court, Upshur County.
Action by the Coal & Coke Railway Company against the Buckhannon River Coal & Coke Company. Judgment for plaintiff, and defendant brings error.
Affirmed.
J. M. N. Dowries, for plaintiff in error.
Young & McWhorter, for defendant in error. «
This writ of error is to a judgment recovered against the Buckhannon River Coal & Coke Company by the Coal & Coke Railway Company in an action of assumpsit for the freight on ten carloads of coal.
Defendant is a corporation engaged in mining coal and manufacturing coke. R. J. Humphreys, its general manager, sold the ten carloads of coal to Hite & Rafetto, of Fairmont, West Virginia, brokers, and, at their request, billed it to J. K. Dimmick & Co., Curtis Bay Piers, Maryland. The bills of lading contained the following written words, "Freight Collect from J. K. Dimmick & Co.", and were signed by defendant in the following manner: "B. R. C. & C. Co. Per R.J. H.", and by P. A. Darnall as agent for the railroad company.
Defendant insists that section 8 of the printed conditions on the back of the bill of lading provides for payment of freight by the consignee, and thereby relieves it from liability therefor. That section is as follows:
Counsel contends that the words "owner" and "consignee", are synonymous terms and refer to the consignee, who is generally also the owner. "We do not think it necessary to construe those terms, for, if it be granted that the construction contended for is correct, it was not the purpose of that section to relieve the consignor from liability on his contract. The bill of lading, together with the tariff schedule approved by the Interstate Commerce Commission constitutes the contract, which was executed by defendant on its own account. It does not purport to be made by defendant as agent for the consignee. That section does not constitute the bill of laidng a special contract relieving the shipper who signed it from liability for the freight charges. It was inserted for the carrier's benefit and is intended as notice to shippers of the carrier's legal rights. Regardless of that clause the consignee, if owner, is bound by accepting the goods to do all that clause requires him to do. But the carrier's right to collect from the consignee does not imply a release of the consignor, in the absence of a special contract exonerating him. The carrier may collect from either. Nor did the carrier's waiver of its lien by delivery before payment of the freight, release the consignor, there being no special contract. Wooster v. Tarr, 8 Allen 270, 85 Am. Dec. 707; 2 Hutch. Carriers, Sec. 810. Both consignor and consignee were bound to plaintiff for the freight, the former on its express contract and the latter on its promise implied by its ownership and acceptance of the coal.
It is next contended that the words, "Freight Collect from J. K. Dimmock & Co.", written in the bills of lading, released defendant from payment of the freight and bound plaintiff to collect it from the consignee. We do not so understand the law. The authorities uniformly hold that such words inserted in a bill of lading are for the benefit of the carrier, and not for the relief of the shipper or consignor. Collins & Timber-lake v. The Union Transportation Co., 10 Watts, (Pa.), 384; and Layng v. Stewart, 1 Watts & Serg., (Pa.), 222. The mere statement, '' collect freight from consignee, "in a bill of lading signed by the consignor, is not alone sufficient to overcome the presumption that the consignor is bound to pay the freight. Wooster...
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