Louisville & N.R. Co. v. McCool

• Decision Date: 19 May 1910
• Citation: 52 So. 656,167 Ala. 644
• Parties: LOUISVILLE & N. R. CO. v. MCCOOL.
• Court: Alabama Supreme Court

52 So. 656

167 Ala. 644

LOUISVILLE & N. R. CO. v. MCCOOL.

Supreme Court of Alabama

May 19, 1910

Appeal from City Court of Montgomery; W. H. Thomas, Judge.

Action by J. M. McCool against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

The action was detinue for certain articles shipped over the Louisville & Nashville line, and alleged to be in their freight depot at Montgomery. Plea 2 is as follows: "The defendant avers that it was, on, to wit, October 16, 1908, a common carrier; that it received on October 10, 1908, at its office in the city of Montgomery the property sued for and consigned to plaintiff; that on, to wit, October 15, 1908 plaintiff called, through his agent, at the warehouse of defendant in the city of Montgomery and demanded the property sued for; that on this occasion plaintiff had no bill of lading; that defendant demand a bill of lading from plaintiff before delivering the property sued for; that plaintiff refused to show a bill of lading for the property sued for that defendant thereupon offered to deliver property to plaintiff upon plaintiff's paying the invoice price of the property sued for, and that plaintiff refused to do this that defendant thereupon offered to deliver the property sued for to plaintiff, upon plaintiff's offering satisfactory evidence of ownership in plaintiff."

The demurrers were as follows: "(1) Now comes the plaintiff and demurs to that portion of the defendant's second plea wherein this plea says 'defendant demanded the bill of lading from plaintiff before delivery of the property sued for; that plaintiff refused to show the bill of lading for the property sued for'--and assigns as his ground of demurrer that there was no legal obligation resting on plaintiff to show any bill of lading for the goods sued for. (2) Plaintiff demurs to that portion of the defendant's second plea reading as follows: 'That the defendant offered to deliver the property to plaintiff upon plaintiff paying the invoice price of the property sued for, and that plaintiff refused to do this'--and assigns as his ground of demurrer that there was no legal obligation resting upon the plaintiff to pay the defendant the invoice price of the property sued for. The only duty resting on plaintiff was to pay on demand the amount of freight due according to the legal classifications and rates, or to show that the freight had been prepaid. This duty being done, the duty of the defendant was to deliver the property in controversy to the plaintiff.'' These demurrers were filed March 31 1909. Other demurrers were as follows: "(1) Said plea is no answer to plaintiff's complaint. (2) It does not state whether plaintiff offered satisfactory evidence or not." Other demurrers filed to the plea as a whole raise the same question as those set out in demurrers numbered 1 and 2 above.

Goodwyn & McIntyre, for appellant.

Warren S. Reese, for appellee.

McCLELLAN J.

Detinue by appellee for chattels in possession of the appellant as a common carrier and consigned to appellee. The appeal is on...