Griffin v. Edward Eiler Lumber Co

• Decision Date: 10 May 1920
• Docket Number: 20895
• Citation: 122 Miss. 265,84 So. 225
• Court: Mississippi Supreme Court
• Parties: GRIFFIN v. EDWARD EILER LUMBER CO

84 So. 225

122 Miss. 265

GRIFFIN v. EDWARD EILER LUMBER CO

No. 20895

Supreme Court of Mississippi

May 10, 1920

March 1920

1 SALES. Carrier designated is buyer's agent to accept delivery; loss from carrier's refusal to accept goods falls on buyer.

Where a contract of sale provides that the goods sold are to be shipped to the buyer, the carrier by which they are to be transported becomes the agent of the buyer to accept delivery, and the loss occasioned by the refusal of the carrier to accept and transport the goods must be borne by the buyer, and not by the seller.

2 SALES. Duty on buyer to furnish cars for shipment f. o. b. at seller's place of business.

When a seller agrees to deliver the goods sold to the buyer f. o. b cars at the seller's place of business, the seller is under no obligation to furnish the cars in which to load the goods, in the absence of an agreement to furnish them.

3 SALES. "F. o. b." means "free on board," and when seller is to ship goods means that they are to be loaded by seller.

The abbreviation "f. o. b.," when used in contracts of sale, means "free on board," and, when the goods sold to be shipped by the seller to the buyer, means that the goods sold are to be loaded by the seller on the vehicle or conveyance for shipment without any expense on the part of the buyer.

HON. R. S. HALL, Judge.

APPEAL from the circuit court of Jones County, HON. R. S. HALL, Judge.

Action by the Edward Eiler Lumber Company against J. M. Griffin. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Reversed and remanded.

Ellis B. Cooper, J. T. Brown and W. J. Pack, for appellant.

Appellant in its brief concedes impliedly that the first question propounded by the court should be answered in the affirmative. In other words there is an implied admission that the railroad company was the agent of the appellee to whom delivery could have been made.

The appellee does not comment upon the refusal to receive by the railroad. This is in fact a concession that the record does not disclose that the failure of appellant to deliver the lumber was caused by the railroad's refusal to receive it.

The two questions, those propounded by the court, have been favorably answered by the appellee itself, and there can be no question on this score, and on the questions propounded and the answers of the appellee, the case should be reversed and a judgment rendered here for appellant.

But counsel says that in the last analysis the question is as to whose duty it is to furnish the cars. We do not concede this. The record plainly shows that it was our duty to deliver to the carrier and that appellee had designated the carrier as its agent to receive it and that its agent refused to receive it.

But we will meet appellee's contentions with the authorities themselves. And we do this not waiving our contention that this proposition was on the matter before the court.

The general rule is thus stated in 35 Cyc., page 197: "If the goods are to be delivered to the purchaser at the point of shipment, it is generally his duty to furnish the cars or other means of transportation from such point. Thus, where the contract is to deliver F. O. B. at the place of shipment, it is prima facie the duty of the buyer to furnish the car or vessel in which the goods shall be shipped."

"The only question of substance is whether Graham's refusal to furnish the work was justified or excused by the conduct of the other party. The first and only serious matter of complaint on his part was delay in furnishing him granite. The undisputed testimony is that this delay was due to their being unable to get cars at the quarry to take the stone, and so, under the instructions, the jury must have found, so that the responsibility for it depends upon who was bound to furnish the cars. By the contract the government was to furnish the granite free on board the cars at the quarry, and Graham agreed to transport it from that place. On such an undertaking as Graham was to do the transporting, and moreover was made responsible for safe delivery on the site of the Museum building, and as the railroad would be his bailee, he naturally would be held to furnish the cars."

It is interesting to note that the supreme court of the United States had before it the case cited by appellee, Hurst v. Altamount Manufacturing Company, 6 L. R. A. (N. S.) 928. See also, as supporting this proposition the following cases: Consolidated Coal Company v. Schneider, 163 Ill. 393, 45 N.E. 126; Wiggins v. Lumber Company, 87 S.E. 94; Graham v. United States, 188 F. 651; Keenkle v. Mitchell, Miss. ; Haskings v. Hamilton, 158 Pa. 107. The authorities cited by counsel are based upon the case of Hurst v. Altamount Mfg. Co., 6 L. R. A. (N. S.) 928. In fact this case has given rise to the conflict of views. As has been pointed out the supreme court of the United States has refused to follow it. We think that by its very terms the instant case would not be ruled by it.

In that case there had been no selection of the carrier by the buyer. The backbone of this decision that the seller has the right to select the carrier; that he has the facilities at hand; and that it is more convenient. The court in the Hurst case in speaking of the meaning of "f. o. b." says: "The decisions are practically unanimous in holding that these words bind the seller to place the goods on board the cars free of expense to the buyer; also that the carrier is the bailee of the consignee, and that delivery to the carrier amounts to delivery to the buyer. We are asked to extend this meaning a step further. It is apparent that the goods cannot be loaded until cars are in place to receive them. The duty to select the carrier and cause it to furnish the cars rests somewhere. The plaintiff in error insists that the duty belongs to the seller."

The appellee in the instant case selected the carrier. Had it not been that this selection was made by appellee, the appellant could have performed the contract. The record shows that if the shipping instructions had not been given we could have delivered the lumber, and even afterwards, if appellee had consented to appellant's request for a change, the lumber would have been delivered. So, even accepting the doctrine of this case, appellee having selected the carrier, it should have furnished the cars.

So we submit that the railroad was the agent of the buyer; that the failure to comply with the contracts was due to the railroad's refusal to receive. We submit that it was the duty of appellee to furnish the cars and this is true even if the doctrine contended for by appellee is correct. We submit further that appellee had the power to modify the shipping instructions and having refused contributed directly to his damage.

Geo. Butler and C. S. Street, for appellee.

As we construe the court's inquiry in its last analysis, it involves the question as to which party is to furnish cars under a contract to ship goods f. o. b. cars at loading point; that is whether the duty devolves upon the seller or the purchaser to furnish cars where there was a contract for delivery f. o. b. cars, and the contract is silent as to which one shall furnish the cars.

The question involves the meaning of f. o. b. cars or free on board cars, and also what the seller undertakes to do under that kind of contract, rather than as to whose agent the carrier becomes after the goods are delivered to the carrier.

We recall no decision upon this exact point in Mississippi. The courts are generally agreed that delivery to the carrier, is a delivery to the consignee, but it does not follow as a consequence that under f. o. b. contracts, the seller is not obligated to procure cars in which to load the shipments.

In 23 R. C. L., page 1337, it is said: "The abbreviation 'f. o. b.'is frequently used in contracts of sale; some courts hold that evidence is admissible to show that the words 'f. o. b.' mean free on board; but generally speaking, it is held that the courts will take judicial notice that such is the meaning, and it has been held that the abbreviation has acquired such a plain meaning as to preclude the admission of evidence of a local usage or contemporaneous oral understanding of the parties to explain its meaning. This abbreviation is considered as referring to and qualifying the delivery, and it is generally considered to mean that the subject of the sale is to be loaded by the seller on the vehicle of conveyance for shipment without any expense on the part of the buyer. Where the provision is for delivery f. o. b. the point of shipment, the duty to pay the transportation charges is upon the buyer, but it is otherwise where the provision is f. o. b. point of destination."

And in discussing whose duty it is, under such circumstances, to furnish cars, the authority says: "The better view, as laid down in the more recent cases is that the duty of...