Merchants' & Miners' Transp. Co. v. Branch

• Decision Date: 05 July 1922
• Docket Number: 1979.
• Citation: 282 F. 494
• Parties: MERCHANTS' & MINERS' TRANSP. CO. v. BRANCH. THE INDIAN.
• Court: U.S. Court of Appeals — Fourth Circuit

282 F. 494

MERCHANTS' & MINERS' TRANSP. CO. v. BRANCH.

THE INDIAN.

No. 1979.

United States Court of Appeals, Fourth Circuit.

July 5, 1922

Leon T Seawell, of Norfolk, Va. (T. H. Swank, of Baltimore, Md., and Hughes, Little & Seawell, of Norfolk, Va., on the brief), for appellant and cross-appellee.

George M. Lanning, of Norfolk, Va., and J. Gordon Bohannan, of Petersburg, Va. (Baird, White & Lanning and Edward R. Baird Jr., all of Norfolk, Va., on the brief), for appellee and cross-appellant.

Before KNAPP, WOODS, and WADDILL, Circuit Judges.

WOODS Circuit Judge.

On April 20, 1920, libelant, C. C. Branch, delivered to respondent, Merchants' & Miners' Transportation Company, on the steamship Indian, 2,025 sacks of potatoes consigned to his own order, Havana, Cuba, notify Jose Perez &amp Co. Branch made his draft for the purchase money, $22,781.25, with bill of lading attached, in favor of First National Bank of Newport News. The potatoes were promptly transported, and reached Havana early in May. The draft and bill of lading were mailed to Banco Espanol de la Isla de Cuba, but they did not reach that bank until June 25, 1920.

On May 12, 13, and 15, Perez & Co. notified Branch by cablegrams and letters of the nonarrival of draft and bill of lading, without response from Branch. On May 18 they cabled notice of nonarrival of documents and of damage from rot, and asked, 'If we pay your draft, will you protect us against loss from rot? ' To this Branch answered next day, 'Will protect; also tracing drafts.'

On May 21, Perez & Co. by letter and cable notified Branch that the documents were still missing, that they had obtained the potatoes by giving guaranty to custom house, that shipment was badly damaged by rotting, that they were sorting the potatoes and would cable extent of damage, and would expect Branch to instruct bank to reduce draft. On May 26 Perez & Co. cabled:

'Finished sorting your potatoes Total rotten 566 sacks Not delivered by steamship 289 Total shortage 855 sacks Instruct Bank reduce draft nine thousand six hundred eighteen seventy five Documents not here yet.' The next day they sent a letter claiming further deduction:

'Because of damage in this shipment we have been obliged to pay the following amount: Duty on 566 sacks of rot $283; labor sorting, $600; and new sacks to the amount of $350.'

To none of these cables did Branch make any response. On May 27 he answered the letter of the 21st, questioning the alleged rotting of the potatoes, and complaining that Perez & Co. had not promptly given security and obtained delivery to them. The transportation company was advised of the correspondence between Perez & Co. and Branch; and without authority from Branch, on or about May 26, to prevent further loss from decay, delivered the potatoes to Perez & Co. on the faith of a written guaranty from them against any claim of Branch.

When the original draft and bill of lading at last reached Banco Espanol de la Isla de Cuba, on the 25th of June, it was the next day presented to Perez & Co. They refused payment, saying a deduction was to be made. The Havana bank reported to the Newport News bank, and received a reply denying the claim of deduction. Upon a second presentation Perez & Co. again refused payment, saying they had arranged matters with Branch. Nothing further was done about the matter until the 20th of August. On that date Perez & Co. sent a letter and statement to Branch, in which they claimed deductions of 566 sacks rotten potatoes and 289 sacks short, amounting to $9,618.95. They claimed a further deduction of $1,500 due them on another transaction. Taking the aggregate from $22,781.25, a balance was left as due Branch of $11,662.50. For this sum they inclosed check intended as full settlement.

Branch retained the check without reply until September 13, when he returned it in a letter claiming the whole purchase price of $22,781.25 to be due to the Newport News bank. On October 5 Perez & Co. again sent check for $11,662.50. This check was returned by Branch on October 14. On October 25 Perez & Co. notified Branch by letter that the bank on which the check was drawn had suspended payment, and that they would hold him responsible for the loss due to his failure to present the check for payment.

On February 2, 1921, Branch filed his libel against Merchants' & Miners' Transportation Company, owner of the steamship Indian, alleging liability of the vessel and owner to the amount of $22,781.25 for the unlawful delivery of the potatoes to Perez & Co. without presentation of the bill of lading. The District Court decreed in favor of the libelant for $16,413.75, being the price at which Branch had agreed to sell the potatoes to Perez & Co. less the agreed price of 566 sacks found to have become worthless by decay before delivery to Perez & Co.

The carrier's obligation to deliver goods according to the bill of lading is qualified by his right and duty to sell perishable goods which cannot be delivered as required by the bill of lading. But sale or other disposition, without notice to the owner or other person concerned, when notice can be...