Louisville & N.R. Co. v. Williams

Decision Date30 November 1911
Citation5 Ala.App. 615,59 So. 673
PartiesLOUISVILLE & N. R. CO. v. WILLIAMS ET AL.
CourtAlabama Court of Appeals

Rehearing Granted May 28, 1912.

Appeal from City Court of Montgomery; Armstead Brown, Judge.

Action by J. J. Williams and another against the Louisville &amp 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
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