Hazard & Chapin v. Illinois Central Railroad Co

• Decision Date: 03 February 1890
• Citation: 67 Miss. 32,7 So. 280
• Parties: HAZARD & CHAPIN v. ILLINOIS CENTRAL RAILROAD CO
• Court: Mississippi Supreme Court

7 So. 280

67 Miss. 32

HAZARD & CHAPIN v. ILLINOIS CENTRAL RAILROAD CO

Supreme Court of Mississippi

February 3, 1890

October 1889

FROM the circuit court of Clay county, HON. LOCK E. HOUSTON Judge.

The declaration of appellants alleged that they were holders for value of a bill of lading for twenty-five bales of cotton issued December 24, 1884, by the appellee, the Illinois Central Railroad Company to Abert & Perkins, at West Point Mississippi, the cotton to be transported to Millville Massachusetts, for the appellants; that through the negligence of the said railroad company four bales of the cotton were lost and not delivered, and that it is liable to them for the value of such cotton.

The bill of lading was in the usual form and was indorsed by the said Abert & Perkins to plaintiffs.

The defendant filed among others a plea that averted that at the time the said bill of lading was issued none of the cotton therein mentioned had been delivered to defendant, and that the agent of defendant issued said bill of lading without authority, relying in good faith on the assurance of said Abert & Perkins that said cotton would be delivered; that only twenty-one bales of the number for which the bill of lading was issued were ever delivered to defendant, the four bales for which plaintiffs sued, by reason of fraud or mistake on the part of said Abert & Perkins, never having been delivered.

Plaintiffs demurred to this plea, and the demurrer was overruled.

Thereupon plaintiffs filed two replications to the said plea, the first of which set up that they were bona fide holders for value of the bill of lading, and at the time of its transfer to them they had no notice of any facts averred in said plea in reference to the nondelivery of the four bales of cotton. The second replication, in addition to the averments contained in the first, alleged that the regular agent of the defendant issued the bill of lading and delivered it to Abert & Perkins, who had before that delivered the twenty-five bales of cotton to W. C. White & Co., lessees of the West Point Compress, and received from them a receipt therefor, which receipt they, Abert & Perkins, delivered to the said agent of defendant who thereupon and in consideration thereof, issued the bill of lading; that in so doing he was acting within the scope of his authority, and following the usual custom of the defendant corporation as a shipper of cotton at that place and at that time.

The demurrer of defendant to the replications was sustained, and plaintiffs declining to further plead, judgment final was entered for the defendant, and plaintiffs appealed.

Affirmed.

Beall & Pope, for the appellants.

We submit that the act of 1886 will be given full force even as against a bill of lading issued before its enactment, as it only affects the remedy and declares a rule of evidence.

It was perfectly competent for the railroad company to establish the custom of taking the receipts of the compress company and issuing bills therefor. This was its custom as the plea avers, and defendant dealt with plaintiffs with reference to it. The cases relied on by counsel for appellee and cited in their brief were cases where the agent acted without the scope of his authority. Here it is alleged that he acted within the scope of his duties and by authority. Therefore the company assumed the risk of the cotton not being delivered.

W. P. & J. B. Harris, for appellee.

The case presents no new question. A bill of lading is a receipt for goods, and is prima facie evidence of the truth of the statements contained in it....