"Now
come the plaintiffs, and, by leave of the court first had
and obtained, file as an amendment to and in lieu of the
complaint heretofore filed in said cause, counts 1, 2, and
3, as follows, to wit:
"(1)
The plaintiffs claim of the defendant the sum of fifty
dollars damages for this: The plaintiffs, who were
merchants then engaged in business at Montgomery
Alabama, ordered on, to wit, May 17, 1901, from one Henry
A. Klyce, then residing and doing business at Dyersburg
Tennessee, two car loads of sacked meal, each car to
contain, to wit, three hundred sacks, to weigh, to wit
ninety-two pounds each, and at and for the price of, to
wit, one and 7/100 dollars per sack, and, to wit, three
hundred sacks to weigh, to wit, forty-four pounds each,
at and for the price of, to wit, fifty-three cents per
sack; all to be by him immediately shipped to the
plaintiffs at Montgomery, Alabama. That the said Klyce
did, on, to wit, the 18th day of May, 1901, deliver to a
railroad company, for transportation to Montgomery,
Alabama, for the plaintiffs, to be delivered upon the
order of the said Klyce, a car containing meal, and then
and there received from the said railroad company a bill
of lading therefor to himself, and purporting to show
that said car contained 500 sacks of meal. That the said
Klyce then and there made out an account in favor of
himself against the plaintiffs for, to wit, three hundred
sacks of meal, containing forty-four pounds each, at
fifty-three cents per sack, and two hundred sacks, each
containing ninety-two pounds of meal, at one and 7/100
dollars per sack, and aggregating, to wit, three hundred
and seventy-three dollars, and attached the said account
and bill of lading to a draft for the sum of, to wit,
$373, drawn by said Klyce on the plaintiffs, payable to
the defendant, the Citizens' Bank, and then and there
sold and delivered said draft, bill of lading and account
to the defendant. That the said Klyce did, on, to wit,
the 21st day of May, 1901, deliver to the said railroad
company for transportation to Montgomery, Alabama, or the
plaintiffs, to be delivered upon the order of the said
Klyce, a car containing meal, and then and there received
from the said company a bill of lading therefor to
himself, and purporting to show that said car contained,
to wit, 600 sacks of meal, and then and there made out an
account in his favor against the plaintiffs for, to wit,
three hundred sacks of meal, weighing ninety-two pounds
each, for the price of one and 7/100 dollars per sack,
and three hundred sacks weighing forty-four pounds each,
at fifty-three cents per sack, and aggregating to wit,
four hundred and eighty dollars, and attached the said
account and the said bill of lading to a draft drawn by
the said Klyce on the plaintiffs, in favor of the said
Citizens' Bank for, to wit, four hundred and eighty
dollars, and sold and delivered said draft, bill of
lading and account to the defendant. That the said drafts
and accounts and bills of lading were by the defendant
forwarded to a bank at Montgomery, Alabama, for
collection from plaintiffs, and the plaintiffs were
compelled to pay, and did pay, the amount of said
respective drafts, and accounts to the said bank at
Montgomery, Alabama, before the plaintiffs could and did
obtain possession of the said meal, and before they had
an opportunity of inspecting and examining the said meal.
That upon the payment of the said drafts and accounts
plaintiffs received the same, together with the said
bills of lading, from the said bank, and immediately
thereafter obtained possession of the meal in said cars,
whereupon the plaintiffs then for the first time learned
that in one of the cars--the second one shipped as
aforesaid--there were seven of said forty-four pound
sacks less than sold and billed as aforesaid, and in the
other of said cars there were eleven of said ninety-two
pound sacks less than sold and billed as aforesaid, and
that, to wit, seven other of the forty-four pound sacks
therein were torn, and the meal therefrom slipped upon
the floor of said car, and thereby damaged and rendered
valueless to the plaintiffs, and that, to wit,
twenty-nine sacks of said meal were torn, so that
plaintiffs were obliged at their own expense to resack
the same before removing it from the car, at great cost
and expense, to wit, twenty-five dollars--all to the
damage of the plaintiffs in the sum aforesaid; wherefore
they sue.
"(2)
The plaintiffs claim of the defendant the sum of twenty-five
dollars damages for this: That Henry A. Klyce, who was then
engaged in business at Dyersburg, Tennessee, did on, to wit
the 18th day of June, 1901, notify the plaintiffs by letter
that he, the said Klyce, had consigned to himself at
Montgomery, Alabama, a car of sacked bran, containing three
hundred sacks, each sack weighing one hundred pounds, and
that he had drawn a draft on plaintiffs, with the bill of
lading attached, for said bran, at the price of seventy-five
cents per hundred pounds delivered, and requested plaintiffs
to sell said bran to the best advantage. That the said Klyce
did, on, to wit, said 18th day of June, 1901, deliver to a
railroad company for transportation to Montgomery, Alabama,
to be delivered on the order of said Klyce, a car containing
bran, and then and there received from said railroad company
a bill of lading therefor to himself, and purporting to show
that said car contained, to wit, three hundred sacks of bran.
That the said Klyce then and there made out an account in his
favor against the plaintiffs for, to wit, three hundred sacks
of bran containing one hundred pounds each, at seventy-five
cents per hundred pounds, and aggregating, to wit, two
hundred and twenty-five dollars, and sent the same to the
plaintiffs. That he then and there attached the said bill of
lading to a draft drawn by him, the said Klyce, on the
plaintiffs, payable to the Citizens' Bank, the defendant,
and then and there sold and delivered said draft and bill of
lading to the defendant. That the said draft and bill of
lading were by said defendant forwarded to a bank at
Montgomery, Alabama, for collection from plaintiffs, and the
plaintiffs were compelled to pay and did pay the amount of
such draft to the said bank at Montgomery, Alabama, before
the plaintiffs could obtain possession of the said bran, and
before they had an opportunity of inspecting and examining
the same. That upon the payment of said draft the plaintiffs
received the same, together with said bill of lading, from
the said bank, and immediately thereafter obtained possession
of said bran in said car, whereupon the plaintiffs then for
the first time learned that the said bran weighed one
thousand pounds less than the amount billed by the said Klyce
and paid for by plaintiffs as aforesaid. That the plaintiffs
sold the bran to the best advantage, and realized therefrom
the sum of, to wit, two hundred and seventeen and 50/100
dollars. That the plaintiffs' commission for selling said
bran amounted to the sum of...
