Appeal
from City Court of Montgomery; Armstead Brown, Judge.
Action
by J. J. Williams and another against the Louisville &
Nashville Railroad Company. From a judgment for plaintiffs
defendant appeals. Reversed and remanded.
See
also, 56 So. 865; 58 So. 315.
In the
above case there were two counts to the complaint, which were
as follows:
"1.
Plaintiffs claim of the defendant the sum of $322.83 and
interest thereon from August 21, 1908, as damages for the
breach of a certain contract entered into on the 2d day of
June, 1908, whereby defendant agreed, for a valuable
consideration, to receive from plaintiffs 100 bales of
cotton, and to ship, transport and deliver the same at
Liverpool, England, by a certain steamship, to wit, the
Saltmarsh; but plaintiffs aver that, although the said 100
bales of cotton were delivered to defendant in full time
for shipment by said steamship Saltmarsh, defendant failed
to ship and transport said cotton by said steamship, but
held the said cotton for a long time, to wit, for more than
30 days, and shipped and transported said cotton by another
and later steamship, to wit, the Vibina, whereby said
cotton did not arrive in Liverpool until more than 30 days
after the arrival of the Saltmarsh at Liverpool. And
plaintiffs aver that during said interval of time the
market price of the said cotton declined, so that
plaintiffs were forced to sell the said cotton at a lower
and lesser price than they would and could have gotten for
the said cotton, had it arrived on the Saltmarsh. Hence
they sue.
"2.
The plaintiffs claim of the defendant the sum of $322.83 and
interest thereon from August 21, 1908, as damages for the
breach of a certain contract, as follows: That on, to wit, 2d
day of June, 1908, defendant agreed, for a valuable
consideration, to receive of plaintiffs and ship, transport
and deliver in Liverpool, England, 100 bales of cotton
agreeing to transport the same by a certain steamship, to
wit, the Saltmarsh; that said cotton was delivered to
defendant on, to wit, 15th June, 1908, in full time for
shipment by said Saltmarsh, and that said Saltmarsh arrived
in Liverpool on, to wit, 17th July, 1908, but that defendant
failed to ship said 100 bales of cotton by said Saltmarsh,
but held the same for a long time, to wit, 30 days, and
shipped the cotton by another and later steamship, to wit,
Vibina; that the Vibina arrived in Liverpool on, to wit, 14th
August, 1908, but that owing to the delay in unloading the
said cotton was not delivered to said plaintiffs until, to
wit, 21st August, 1908.
"And
plaintiffs aver that between the date of the arrival of the
Saltmarsh and of the arrival of the Vibina the market price
of the said 100 bales of cotton declined, so that plaintiffs
were forced to sell the said cotton at a much lower and
smaller price than they would and could have gotten, had the
cotton arrived on the Saltmarsh. Wherefore plaintiffs were
damaged in the sum aforesaid, and hence they sue."
The
facts were agreed upon, and were as follows:
"During
the year 1908, the Louisville & Nashville Railroad Company
was a common carrier, operating a line of railroad for the
carriage of freight from the plant of the Atlantic Compress
Company at Pensacola, Florida, to the port of Pensacola. On
May 25, 1908, J. J. Williams, doing business in Liverpool,
England, under the firm name of J. J. Williams & Co.,
cabled to Elmore, Quillan & Co., a partnership doing
business in Montgomery, Alabama, the following message:
'Cannot accept your offer but give you a counter offer,
same terms for two hundred bales on the basis of .60 for
July, August, delivery.' Elmore, Quillan & Co. replied
to this message, the reply reaching Williams & Co. May 28,
1908, as follows: 'Have filed your order one hundred
bales provided at not under 6.40.' Williams & Co. the
same day cabled Elmore, Quillan & Co. the following:
'We confirm purchase one hundred bales, invoice at .42,
hurry forward shipment, draw at thirty days sight crediting
us with the difference. Draw on us for this order.'
"On
June 1, 1908, Elmore, Quillan & Co. applied to R. H. Davis,
who was the booking agent of the Louisville & Nashville
Railroad Company for foreign freight at Montgomery, Ala.,
to quote them rates on cotton from Pensacola, Fla., to
Liverpool, England, by the steamship Saltmarsh; which was
then advertised and expected to arrive in Pensacola, Fla.,
June 5, 1908. Davis quoted a rate of 25 cents per hundred
pounds for ocean freight by the steamship Saltmarsh, which
rate Elmore, Quillan & Co. accepted, subject to
confirmation by the Louisville & Nashville Railroad
Company. Davis, on June 1, 1908, telegraphed to J. A.
Bywater, who was foreign freight agent for the Louisville &
Nashville Railroad Company at Louisville, Ky., as follows:
'Book account Elmore, Quillan & Co., 100 bales
Liverpool at ocean 25 cents, steamer Saltmarsh. Confirmed.
Also give refusal two hundred bales more. R. H. Davis.'
To this message J. A. Bywater replied on the same day, as
follows: 'R. H. Davis, Montgomery, Ala. Have booked
under contract B 913 account Elmore & Quillan one hundred
bales Liverpool steamer Saltmarsh. All right give refusal
two hundred more. Get all you can. Steamer due on 5th. J.
A. Bywater.' This last telegram was shown to Elmore,
Quillan & Co. by Davis, or its contents reported to them by
him. J. A. Bywater, on June 1st, telegraphed Funch, Edye &
Co. of New York, who were agents for the Pensacola Trading
Company, owners of the line of steamers connecting with the
Louisville & Nashville Railroad Company at Pensacola, Fla.,
as follows: 'Book one hundred bales of cotton to
Liverpool ocean 25 cents contract nine hundred and thirteen
confirm.' Funch, Edye & Co. replied, on June 2, 1908,
as follows: 'We confirm contract B 913 Liverpool, one
hundred bales; what have you reported under contract B
912.'
"Elmore,
Quillan & Co., on June 11, 1908, delivered to the Atlantic
Compress Company at Pensacola, authorized receiving agents
of cotton for the Louisville & Nashville Railroad Company,
the 100 bales of cotton in question, and received from the
Louisville & Nashville Railroad Company two bills of lading
therefor, which bills of lading are hereto attached and
made a part of this agreed statement of facts.
"Upon
receipt of the bills of lading, Elmore, Quillan & Co.
prepaid all ocean freight and terminal charges at
Pensacola, according to the rate quoted by Davis and
confirmed by Bywater. From June 11th to June 17th, the
cotton was held by the Atlantic Compress Company for
account of and subject to the order of the Louisville &
Nashville Railroad Company.
"The
Louisville & Nashville Railroad Company owned tracks from
the Atlantic Compress Company's plant at Pensacola to
the wharves at Pensacola, and operated trains over such
tracks; from the Atlantic Compress Company's plant to
the wharf is a distance of about three miles.
"The
bills of lading were received by W. W. Brame, a member of
the firm of Elmore, Quillan & Co.; but no partner, agent,
or employé of Elmore, Quillan & Co. read the bills of
lading, other than to see that the blanks specifying the
marks, number of bales, weight, shippers, and consignees
were properly filled in. These bills of lading were
immediately attached to drafts drawn by Elmore, Quillan &
Co. upon J. J. Williams & Co. for the purchase price of the
100 bales and hypothecated with a bank. Upon presentation,
this purchase-money draft was accepted and paid by J. J.
Williams & Co. at maturity.
"The
steamship Saltmarsh commenced loading at Pensacola for
Liverpool on June 12, 1908. The hundred bales of cotton
involved in this case were switched by defendant from the
Atlantic Compress Company's plant to the Louisville &
Nashville Railroad Company's wharf on June 17, 1908, at
which wharf the steamer Saltmarsh was loading. That the
Saltmarsh finished loading for Liverpool on June 23, 1908.
That in loading the steamer Saltmarsh was tied up against
the Louisville & Nashville Railroad Company's wharf.
That freight was trucked over the wharf to the side of the
steamer and hoisted thereon by winches, etc. The agent and
stevedore of the Saltmarsh had charge of and control of
loading the vessel and the selection of the freight
tendered, under the direction of her master.
"The
100 bales of cotton was tendered to the vessel or agent
therefor by the Louisville & Nashville Railroad Company in
the following manner: A list of all freight, including this
100 bales, engaged for the steamer was made out by the
Louisville & Nashville Railroad Company and delivered to
the master of the vessel, of the agents of the vessel; and
in this case the foreign freight agent of the Louisville &
Nashville Railroad Company was not notified that the cotton
in question would not be loaded upon the steamer Saltmarsh.
"The
Saltmarsh arrived in Liverpool July 17, 1908, without
having on board the cotton in question. The steamer Vibina,
owned and operated by the same company, one of the same
line, and also connecting with the Louisville & Nashville
Railroad Company at Pensacola, Fla., arrived in Liverpool
August 14, 1908, with the cotton in question on board.
Compliance with port rules, quarantine, and trade
regulation in Liverpool made it impossible, during 1908,
for cotton arriving by boat to be sold within less than 10
days from the date of arrival of the boat.
"The
cotton in question was delivered to consignees, J. J.
Williams & Co., on August 24, 1908, which was the first day
after the arrival of the cotton upon which it could be sold
in Liverpool. Had the cotton arrived by the Saltmarsh, it
could not have been
...