Ellett v. Embury & Maury

• Decision Date: 12 November 1919
• Citation: 217 S.W. 818,142 Tenn. 444
• Parties: ELLETT v. EMBURY & MAURY ET AL.
• Court: Tennessee Supreme Court

217 S.W. 818

142 Tenn. 444

ELLETT v. EMBURY & MAURY ET AL.

Supreme Court of Tennessee.

November 12, 1919

Appeal from Chancery Court, Shelby County; I. H. Peres, Chancellor.

Bill by John Ellett against Embury & Maury and others. Decree for complainant against Embury & Maury and the defendant Steamship Company and in favor of Embury & Maury against the defendant J. H. W. Steele Company, decreeing that the latter was not liable to plaintiff on account of alleged excess of freight collected by the Steamship Company, also dismissing the Steamship Company's cross-bill against the Steele Company without prejudice. From that part of the decree dismissing the Steamship Company's cross-bill without prejudice, the Steele Company appeals. The Steamship Company appealed from the decree rendered against it, and Embury & Maury appealed from the decree rendered against them. Decree against Embury & Maury and Leyland Harrison Steamship lines in favor of complainant affirmed. Decree against J. H. W Steele Company in favor of Embury & Maury under their cross-bill reversed, and cross-bill dismissed. Decree dismissing the cross-bill by the Steamship Company against the Steele Company reversed, and cross-bill of Steamship Company dismissed absolutely.

Holmes & Canale, of Memphis, for appellant.

Randolph & Randolph, Ewing, King & King, and Sivley, Evans & McCadden all of Memphis, for appellees.

HALL J.

The bill in this cause was filed by the complainant against Embury & Maury, cotton factors of the city of Memphis, J. H W. Steele Company, foreign freight brokers and forwarders, with an office in the city of Memphis, and the Leyland Harrison Steamship Lines of the Kingdom of Great Britain, also with an office and agent in Memphis, for the purpose of collecting from said defendants the sum of $1,228.15, with interest, which amount he was forced to pay to the steamship company as freight on 400 bales of cotton shipped from Memphis to Liverpool, England, by reason of an alleged breach of a contract which said defendants had with complainant.

The facts out of which the suit grew are as follows: Embury & Maury, cotton factors of the city of Memphis, sold to the complainant, Ellett, 400 bales of cotton at a stipulated price, agreeing to pay the freight for the shipment of said cotton from Memphis to Liverpool, England. The inland rate on said cotton from Memphis to New Orleans was 30 cents per hundredweight, and the ocean rate from New Orleans to Liverpool was $1.40, making the total rate from Memphis to Liverpool $1.70.

Prior to making this contract with the complainant, Embury & Maury had contracted with the defendant steamship company for the transportation of 2,000 bales of cotton from Memphis to Liverpool; the same to be shipped in the month of December, 1915.

It had been the uniform custom and practice for many years for parties having such contracts of shipment with the steamship companies, including the Leyland Harrison Steamship Lines, to relet or sublet the same to other shippers upon notifying the defendant J. H. W. Steele Company at Memphis, whom the proof shows is a foreign freight forwarding broker; that upon receiving notification of the reletting J. H. W. Steele Company would thereupon confirm the reletting to the railroad company carrying the cotton from Memphis to New Orleans, to be delivered to the steamship company. The railroad company, acting as the agent of the steamship company, would issue a through bill of lading, the same being signed by the agent of the railroad company, binding the railroad company to carry said cotton from Memphis to New Orleans, and binding the steamship company to carry the same from New Orleans to Liverpool.

Before consummating said contract with the complainant Ellett, the defendants Embury & Maury called up J. H. W. Steele Company for the purpose of ascertaining if the 400 bales of cotton in question could be relet to complainant under their contract with the steamship company. Upon being informed by J. H. W. Steele Company that this could be done, Embury & Maury sold the cotton to complainant at a stipulated price, cost and freight to Liverpool, meaning thereby that said cotton would be delivered at Liverpool by the sellers, Embury & Maury, who had J. H. W. Steele Company to issue its confirmations for said cotton to the railroad company. Whereupon the railroad company, who, the proof shows, acting on behalf of itself and the steamship company, issued through bills of lading for said 400 bales of cotton based upon the confirmations made to it by J. H. W. Steele Company. The complainant paid to the railroad company the inland rate of 30 cents, and the ocean rate of $1.40, which amount, under the contract with Embury & Maury, he was to deduct from the invoices to be rendered to him by Embury & Maury.

The cotton was carried by the railroad company to New Orleans under said bills of lading, and upon its arrival at New Orleans the steamship company refused to receive and carry the same to Liverpool, stating as its reason therefor that Embury & Maury's contract for December shipments had already been overshipped with cotton shipped in their own name and by others to whom reletting had been made. However, upon it being subsequently ascertained that Embury & Maury's contract had not, in fact, been overshipped, the steamship company then gave as its reason for not transporting said cotton that Embury & Maury had no right to relet the same to Ellett under their contract with the steamship company.

The steamship company demanded of the complainant the additional sum of $1,228.15 for the transportation of the cotton from New Orleans to Liverpool, which amount represented an advance in the ocean freight rate of 60 cents per hundredweight, and represented the difference between the contract rate of $1.40 and the then current rate of $2. The steamship company refused to move the cotton until this difference was paid by the complainant. He therefore paid the same under protest, and notified Embury & Maury that he would hold them liable for the guaranteed ocean rate of $1.40, and also notified the steamship company that he would hold it responsible for said difference by reason of its refusal to carry the cotton at the rate specified in the bills of lading.

Embury & Maury answered the bill, and filed a cross-bill against J. H. W. Steele Company, alleging that J. H. W. Steele Company had advised them that they could relet said 400 bales of cotton to the complainant, and that the same could be shipped under their contract, that they both relied and acted upon J. H. W. Steele Company's representation that said cotton could be shipped under their contract with the steamship company in the name of Ellett, which representation was false and misled cross-complainants to their injury, and they sought a recovery against J. H. W. Steele Company.

The steamship company answered the bill, denying its material allegations, and also filed a cross-bill against J. H. W. Steele Company, in which it was alleged that, in the event J. H. W. Steele Company had made misrepresentations to Embury & Maury, and had wrongfully held itself out as the agent of the steamship company, whereby and on account of which a right of action had accrued against the steamship company, said company should be allowed to recover from J. H. W. Steele Company any amount for which it might be held liable by reason of any misrepresentation that the J. H. W. Steele Company may have made to Ellett and Embury & Maury.

The steamship company denied in its answer that J. H. W. Steele Company had authority to confirm the reletting of said cotton to the railroad company, and denied that the railroad company had authority to issue a through bill of lading binding the steamship company to receive the cotton under such reletting contract and transport it to Liverpool. In short, the steamship company denied that J. H. W. Steele Company was in any sense its agent or had the right to bind it by confirmations issued to the railroad company.

Upon the hearing the chancellor gave the complainant a decree against both Embury & Maury and the steamship company for the amount of the freight which he was forced to pay to the steamship company in excess of the contract rate at which the cotton was to be transported from Memphis to Liverpool. He also decreed a recovery for said amount in favor of Embury & Maury under their cross-bill against J. H. W. Steele Company. He decreed that J. H. W. Steele Company was not liable to complainant on account of the alleged excess freight collected by the steamship company, from which holding the complainant, Ellett, did not appeal. He dismissed the steamship company's cross-bill against J....