Fox v. Baggett

• Decision Date: 06 May 1912
• Docket Number: 15308
• Citation: 58 So. 481,101 Miss. 519
• Court: Mississippi Supreme Court
• Parties: C. B. FOX v. LEE BAGGETT

58 So. 481

101 Miss. 519

C. B. FOX v. LEE BAGGETT

No. 15308

Supreme Court of Mississippi

May 6, 1912

APPEAL from the circuit court of Lafayette county, HON.W. A. ROANE Judge.

Suit by C. B. Fox against Lee Baggett. From a judgment for defendant plaintiff appeals.

The appellant was plaintiff in the court below, and appellee was defendant. The declaration alleged that plaintiff purchased of defendant, one hundred and fifty tons of loose cotton seed cake at twenty-three dollars a ton of two thousand, two hundred and forty pounds, to be delivered at Shipside Terminals, New Orleans, La., weights and quality guaranteed by seller at American destination." In accordance with this contract, three carloads of loose cake were shipped to plaintiff, and drafts forwarded with bill of lading attached which drafts were paid. It is alleged that these cars were billed to plaintiff and were stopped en route at sacking plants in city of New Orleans, where the contents of the cars were sacked and the cars resealed and sent to the Shipside Terminals. The contents of the cars were weighed after sacking, and there was a shortage of thirteen tons. Plaintiff sues to recover the value of this shortage. It is alleged that the sale and delivery was subject to the rules and regulations of the Interstate Cotton Seed Crushers' Association. One of the rules of the association is that the "certificates so taken and properly sworn to shall determine weight and in all cases where cake is sold delivered, or weights guaranteed at destination, provided the shipment is not broken in transit." Appellee contends that the shipment was broken in transit by reason of being sacked, but appellant contends that contract allows inspection, and further that it provides that the cars shall be delivered at Shipside, and that "weights were guaranteed at American destination," which means Shipside, under the contract. It is further contended by appellant that, since the contract specifies delivery at Shipside Terminals, the defendant must deliver the amount contracted for at such destination. On motion of the defendant, evidence of the plaintiff was excluded, and a peremptory instruction given to find for the defendant. Plaintiff, in his depositions, quotes figures from accounts and memoranda kept by a clerk in his office, showing weights of cars and cake. And one Douglas, a public weigher, in his depositions also quotes figures from books and memoranda kept by an employee of his; but there was no objection at the time to this testimony.

Reversed.

Edgar Webtser, for appellant.

We contend, first: That the weight certificates, pages 11, 12 and 13, determine the actual weight of the contents of every car. Because by the rules and regulations of the Cotton Seed Crushers' Association, such "certificates so taken and properly sworn to shall determine weight in all cases where cake is sold 'delivered' or 'weights guaranteed' at destination, provided the shipment is not broken in transit." Rule 8, Sec. 5, page 38 of this record. In this particular instance the contract specially stipulated that "weights guaranteed at American Destination," pages 7 and 28, which destination, under the contract, was Shipside Terminals of the Illinois Central Railroad, New Orleans, La. That being true, such certificates determine the actual contents of the several cars. Counsel for appellee contend that these cars were broken in transit. However, we submit under a reasonable construction of the contract of sale, and the rule and regulations of the Cotton Seed Crushers' Association, which said regulations, together with all the customs of the port, incident thereto, were incorporated into the same, the shipment was not broken in transit.

Because (a), the contract "allows inspection," and the cars were to be delivered at Shipside, pages 7 and 28. To allow inspection is to permit the seal of the car to be broken, the port inspector to go into and upon the contents of same, and to examine them and to take samples and sacks at random from the car. "Delivered Shipside" signifies that the cars reached their destination when, and only when, they are switched alongside a ship at the wharf. The appellee, familiar with the customs of the port and the places of delivery, knew, or by the exercise of reasonable diligence ought to have known, that the cake was intended for export, and for that reason had to be sacked, either by hand at the place of delivery, or at some sacking plant, intervening. See answer to Xinter, No. 7 of C. B. Fox. There was no rule of the association governing the sacking and weighing of the cake, neither was there any stipulation in the contract, relative to the sacking and weighing, hence in the absence of both, the custom of the port prevailed. See answer to Xinter interrogatory No. 9 of C. B. Fox, page 23. And had the custom of the port been disregarded the contents of the cars could not have been weighed, and would have placed the buyer at the mercy of the seller. Answer to Xinter interrogatory 11, page 24. Therefore, the contract contemplated a breaking of the seal, a sacking, and a weighing, and such having been done in accordance with the rules, customs and import of the contract, it did not constitute a breaking in transit, in the meaning and import of the rule supra.

Because (b), we have in the rules and regulations of the Cotton Seed Crushers' Association the definition of what is recognized to be a "breaking in transit." See General Rules, rule 13, Sec. 1, page 39, "All offers, sales or purchases of cotton seed products shall be understood, unless specified to the contrary, to be f. o. b. cars at the mill," . . . "loss or damage by accident or wreckage in transit to be at buyer's risk." From this rule, it is evident if a car is wrecked, damaged, derailed or destroyed by the act of God, or by the railroad company, and the contents disturbed thereby, then the car has been "broken in transit," and certificates taken of the remaining contents, if any would not and ought not to determine the amount billed out by the seller. Otherwise it is not considered broken in transit, and an inspection, sacking and weighing does not constitute such.

Appellant further contends that these cars at the time of sacking were not his, but that they were still in the custody of the railroad company, both they and their contents, and that the railroad company was the agent of Lee Baggett, and not the agent of C. B. Fox, rule 13, Sec. 1, provides "unless specified to the contrary," all sales, etc., "shall be understood to be f. o. b. cars at the mill," but in this particular...