Louisville & N.R. Co. v. Allgood

• Citation: 113 Ala. 163,20 So. 986
• Court: Alabama Supreme Court
• Decision Date: 27 November 1896
• Parties: LOUISVILLE & N. R. CO. v. ALLGOOD.

20 So. 986

113 Ala. 163

LOUISVILLE & N. R. CO. v. ALLGOOD.

Supreme Court of Alabama

November 27, 1896

Appeal from circuit court, Blount county; J. A. Bilbro, Judge.

Action by J. D. Allgood against the Louisville & Nashville Railroad Company. Judgment for plaintiff. Defendant appeals. Affirmed.

This action was brought by the appellee against the appellant to recover damages for failure of the defendant to deliver certain goods which were shipped over its railroad. To the complaint as originally filed, the court sustained demurrers and thereupon the plaintiff filed the following amended complaint: "The plaintiff claims of the defendant the sum of one hundred dollars, damages for the failure to deliver certain goods, to wit, one car bark, No. 3,631 received by them as common carriers to be delivered to Woolman, Lopez & Co., at St. Louis, in the state of Missouri for a reward, at the request of the plaintiff, which they failed to do, under a contract by which defendants were to deliver said bark to Woolman, Lopez & Co., for the benefit of plaintiff, which said contract was made by plaintiff with defendant." To this complaint, as amended, the defendant interposed the following demurrers: "(1) Said amended complaint fails to show that the reward was paid by plaintiff, or assumed or agreed to be paid by him. (2) Said amended complaint fails to show who paid or agreed to pay the reward stated in the complaint. (3) Defendant demurs to said amended complaint on the grounds assigned in the demurrer heretofore filed to the original complaint, and makes said grounds of demurrer a part of these demurrers, and now interposes said demurrers to said amended complaint." These demurrers were overruled, and to this ruling the defendant duly excepted. Thereupon the defendant pleaded the general issue and the following special pleas: "(1) The car load of bark was received by defendant f. o. b., to be delivered to Woolman, Lopez & Co., as consignees, and not to plaintiff; and all title and interest in said bark was then and there vested in said consignees, and defendants have never claimed, demanded, or looked to plaintiff for any hire or reward for the transportation of said bark, nor has the plaintiff ever paid or offered to pay defendant for the transportation of said bark. (2) And, for further answer, defendant says that the consignees were to pay them for the transportation of said bark, and no charges were made by defendants against plaintiff therefor. (3) And, for further plea in this behalf, the defendant says that plaintiff has no right to maintain this suit, because he says that plaintiff had no interest in the bark shipped, and sustained no loss or injury by any failure on the part of defendant to deliver said bark, if any failure there was." The plaintiff moved the court to strike out that portion of the pleas which is in italics, and also to strike out special pleas 2 and 3. The court granted this motion, and the defendant separately excepted to the ruling on said pleas. Issue was joined on the plea of the general issue.

J. B Harvey, a witness for the plaintiff, testified that he delivered for the plaintiff a car load of bark, described in the bill of lading, to the agent of the defendant at Oneonta Ala., in the name of the plaintiff, to be shipped to Woolman Lopez & Co., at St. Louis; and that this bark was to be weighed and sold in St. Louis by Woolman, Lopez & Co. for plaintiff. The bill of lading which was issued by the defendant's agent to the plaintiff upon the delivery of the bark, and which was introduced in evidence, was such a bill of lading as is usually given by railroads in the shipment of freight over their line. On the cross examination of the witness Harvey, he said that the bark belonged to the plaintiff; that he brought it from one L. J. Armstrong; and that the witness paid for it in trade, at the request of the plaintiff, as it was hauled to the station. This witness further testified that L. J. Armstrong gave him an order on the plaintiff to pay for the bark, and that he (the witness) had an interest of something like $40 in the bark, and that the bark was worth about $70. The depot agent of the defendant at Oneonta testified that he received the car load of bark, and gave the plaintiff the bill of lading therefor, and that the shipment was consigned to Woolman, Lopez & Co. J. D. Allgood, the plaintiff, testified as follows: "It was my bark. I bought it from L. J. Armstrong, and was to pay him $5 per cord for it. They were to pay the freight. This bark was delivered to defendant for shipment to Woolman, Lopez & Co., at St. Louis, about the first of June, year before last." On cross-examination the witness stated: "I was not to pay for the bark until I got returns from the bark from the consignees at St. Louis. Harvey paid for the bark for me. I bought the bark, and was to pay on returns from Woolman, Lopez & Co. If the bark was not good, the parties I bought from were to bear the loss. Harvey holds an order on me from L. J. Armstrong, which I accepted to be paid when I got returns from the bark. I have never received any returns from the bark. After I pay Armstrong for the bark, my interest in the proceeds of the bark will be about six dollars, as I get fifty cents per cord as commissions for shipping. I did not employ an attorney in this case, nor tell any one to bring suit. Harvey and I talked about it, and he got me to consent to let the suit be brought in my name. He is to pay the attorney's fees; and be responsible for the costs." L. J. Armstrong, witness for defendant, testified as follows: "I peeled the bark on my land, and sold it to J. D. Allgood, but he did...