Erie Dispatch v. Johnson

• Citation: 11 S.W. 441,87 Tenn. 490
• Parties: ERIE DISPATCH v. JOHNSON et al.
• Decision Date: 04 April 1889
• Court: Tennessee Supreme Court

11 S.W. 441

87 Tenn. 490

ERIE DISPATCH v. JOHNSON et al.

Supreme Court of Tennessee.

April 4, 1889

Error to circuit court, Shelby county; L. H. ESTES, Judge.

H. C Warinner, for plaintiff in error.

Poston & Poston, for defendants in error.

CALDWELL J.

Johnson & Guinee were merchants doing business in the city of Memphis. They purchased a car-load of lemons in the city of New York, and put them in charge of the Erie Dispatch, a common carrier, for transportation to Memphis. This action was brought to recover damages for a failure to deliver the lemons at their destination. Verdict and judgment were for the plaintiffs, and the defendant has brought the case to this court by writ of error and supersedeas. The declaration contains two counts,--one for breach of contract to deliver the lemons, and the other for conversion. The trial judge charged the jury that the measure of damages was the value of the lemons in the Memphis market at the time they should have been delivered, less the freight. This instruction is assigned as error. Learned counsel for the appellant concedes that the instruction would have been correct, as applied to a case in which there was no agreement between the contracting parties for a different measure of damages, but he insists that there was such an agreement in this case, whereby it is taken out of that rule. The bill of lading stipulates that the measure of damages in case of loss shall be the value of the lemons in New York at the time of shipment, and the contention of the carrier is that this stipulation constitutes an exception to the rule of law stated by the trial judge, and determines the true criterion for the measure of damages in this case. This position is not tenable under the facts developed in this record. Though the bill of lading does contain the stipulation just mentioned, that fact could in no event be controlling in this case, because it was clearly shown on the trial that the Dispatch Company had been guilty of a conversion of the lemons by negligently delivering them to a merchant in Louisville, and thereafter contracting with that merchant to sell them, and hold the proceeds for its accounts, which was done. Without expressing an opinion as to the validity of such a stipulation in the case of an ordinary loss, we hold that it can by no possible intendment or construction apply to a case of conversion by the carrier, as this is. In such a case the...