Louisville & N.R. Co. v. Williams

• Decision Date: 30 November 1911
• Citation: 56 So. 865,5 Ala.App. 615
• Parties: LOUISVILLE & N. R. CO. v. WILLIAMS.
• Court: Alabama Court of Appeals

56 So. 865

5 Ala.App. 615

LOUISVILLE & N. R. CO. v. WILLIAMS.

Court of Appeals of Alabama

November 30, 1911

On Application for Rehearing, December 16, 1911.

On Application for Rehearing.

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

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

R. T Goodwyn, for appellant.

Ludlow Elmore, for appellee.

DE GRAFFENRIED, J.

1. This suit was brought by appellee against appellant for recovery of damages for the breach of a contract which the plaintiff alleges was made by the defendant with him to transport and deliver to him by the steamer Saltmarsh 100 bales of cotton and which the appellant failed to do. The contract of shipment was made by appellant with Elmore, Quillan & Co. and in making the contract appellee was not disclosed as a party in interest. It is contended by appellee that Elmore Quillan & Co. were his agents in the making of said contract and that the contract was made for his benefit. The evidence supports this contention, and appellee had a right to maintain this suit in his own name. The case of Lucas v. Railroad Company, 122 Ala. 529, 25 So. 219, which announced a contrary doctrine, was expressly overruled by the Supreme Court, in the case of Manker v. Western Union Telegraph Co., 137 Ala. 292, 34 So. 839.

2. The facts are that the Pensacola Trading Company is a corporation, and owns a line of steamers connecting with the Louisville & Nashville Railroad Company at Pensacola, Fla., and its steamers are engaged in the business of transporting freight to and from Pensacola, Fla., and Liverpool, England. Funch Edyei & Co., with headquarters in New York, were the general agents of said Pensacola Trading Company. Elmore, Quillan & Co. were cotton factors, doing business in Montgomery, Ala., and, on or about the 28th day of May, 1908, they sold to appellee, whose place of business is Liverpool, England, and who does business under the name of Williams & Co., 100 bales of cotton, and on that day appellee wired them to hurry forward the cotton to Liverpool. On June 1st, acting under the instructions received from appellee, Elmore, Quillan & Co. applied to R. H. Davis, booking agent of the appellant for foreign freight at Montgomery, Ala., to quote them rates on 100 bales of cotton from Pensacola to Liverpool by the steamer Saltmarsh, which was then advertised to reach Pensacola on June 5th. Davis quoted a rate which Elmore, Quillan & Co. accepted, subject to confirmation by appellant. Davis, on June 1st, telegraphed to J. A. Bywater, who was foreign freight agent for appellant at Louisville, Ky., as follows: "Book account Elmore, Quillan & Company, 100 bales Liverpool at ocean 25 cents, Steamer Saltmarsh. Confirm. 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 & Company 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 Edyei & Co., of New York, as follows: "Book one hundred bales of cotton to Liverpool, ocean 25 cents contract nine hundred and thirteen confirm." Funch Edyei & 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 11th, delivered to the Atlantic Compress Company, at Pensacola, Fla., the authorized receiving agents of cotton for appellant, the 100 bales of cotton and received therefor a bill of lading. Upon the receipt of the bill of lading, Elmore, Quillan & Co. prepaid all ocean freight and terminal charges.

Appellant owned two tracks from the Atlantic Compress plant at Pensacola to the wharves at Pensacola, and operated trains over such tracks. The distance between the compress company's plant and the wharves was three miles. The bill of lading was 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 bill of lading, other than to see that the blanks specifying the marks, number of bales, weight, shippers, and consignees were properly filled in.

The steamship Saltmarsh commenced loading for Liverpool at the wharves of appellant at Pensacola on the 12th day of June, and finished loading for Liverpool on the 23d day of June. The cotton remained at the Atlantic Compress Company's plant until June 17th, five days after the Saltmarsh had commenced her loading. The 100 bales of cotton were tendered to the vessel by the appellant in the following manner: A list of all freight, including this 100 bales, engaged for the steamer was made out by appellant and delivered to the master of the vessel, and on June 17th the 100 bales of cotton were switched by appellant from the compress company's plant to appellant's wharf, where the Saltmarsh was loading. The master of the Saltmarsh, it appears, had the right, under the custom of the steamer, to say what freight he would take or refuse to take upon any particular trip. In the present instance, certain cotton, billets, shuttle blocks, and other freight which appellant had contracted to be shipped by the Saltmarsh on this particular trip, and which contracts were made after June 1st, were accepted by the master and carried to Liverpool, but the steamer failed to receive the 100 bales of cotton in controversy, and the same was carried to Liverpool about one month later by another steamer of the steamship company by name The Vibina, and by reason of the delay in the shipment, on account of a decline in the cotton market, appellee was damaged.

There are certain stipulations in the bill of lading which was delivered by appellant to appellee on June 11th which provide that appellant shall, on account of the rate of freight therein named, only be liable for damages occurring to freight while on its own line, and that its liability as a common carrier ceases upon the tendering of freight to its connecting carrier. Appellant claims that as it tendered the cotton to the Saltmarsh on the 17th day of June, six days before the steamer finished loading, it had performed all of the duties which it owed as a common carrier to appellee in the premises, and that it had a right, under a stipulation in the bill of lading, to ship the cotton to Liverpool by the next steamer which left Pensacola for Liverpool, viz., The Vibina, and that, having met the letter of its contract as set out in its bill of lading, appellee was not entitled to recover.

The appellee had a...