Mobile, J. & K.C.R. Co. v. Bay Shore Lumber Co.

• Decision Date: 19 November 1908
• Citation: Mobile, J. & K.C.R. Co. v. Bay Shore Lumber Co., 48 So. 377, 158 Ala. 622 (Ala. 1908)
• Parties: MOBILE, J. & K. C. R. CO. v. BAY SHORE LUMBER CO.
• Court: Alabama Supreme Court

48 So. 377

158 Ala. 622

MOBILE, J. & K. C. R. CO. v. BAY SHORE LUMBER CO.

Supreme Court of Alabama

November 19, 1908

Rehearing Denied Jan. 14, 1909.

Appeal from Law and Equity Court, Mobile County; Saffold Berney Judge.

Action by the Bay Shore Lumber Company against the Mobile, Jackson &amp Kansas City Railroad Company. From a judgment for plaintiff defendant appeals. Reversed and remanded.

The complaint was for the conversion of a lot of lumber, the dimensions of which are set out in the complaint. Plea 2, as originally filed, is as follows:

"That plaintiff shipped over defendant's line of railroad, from some point in the state of Mississippi two cars of lumber to the city of Mobile, in the state of Alabama, said lumber being loaded on cars of the defendant, No. 3212 and No. 242, respectively, and consigned to plaintiff company in Mobile. That said cars of lumber were designated on one freight waybill. Defendant further says that said lumber had been shipped to Mobile for the purpose of selling and disposing of the same in market, and that upon the arrival of said cars in Mobile said plaintiff, by its agents and servants, prepared and delivered to the Lewis Land & Lumber Company, an incorporation engaged in the purchase and sale of lumber in the city of Mobile, an invoice or statement in writing in words and figures as follows:

Mobile, Ala., Nov. 28th, 1906.

Lewis Land & Lbr. Co.

Mobile, Ala.

Our No. B. D.

To Bay Shore Lumber Co., Dr.

Manufacturers

Yellow Pine Lumber

Order No. 45-G.

initial

Car Nos. 3212 & 242 K. C.

Shipped to

Lewis Land & Lbr. Co.

Mobile, Ala.

c/o Munson S. S. Line.

32 pcs 5 x 12 x 38 ......... 6089

23 pcs 4 1/2 x 5 1/2 x 43 .. 2040

49 pcs 6 x 8 x 43 .......... 8248 16548

____

16548 ft. @ $35.00 ...................... $579.18

F. O. B. Mill.

"And that upon the demand of the said Lewis Land & Lumber Company, and upon the representation that it had purchased said lumber upon said cars, the same was delivered to the said Lewis Land & Lumber Company; and defendant says that it acted upon the said invoice or statement, in writing aforesaid, indicating a sale of said lumber by plaintiff to the said Lewis Land & Lumber Company, and that its said action was in accordance with its custom of dealing with said plaintiff and said Lewis Land & Lumber Company, which said custom is known to plaintiff; and defendant further says that defendant's negligent misdirection to it in delivering to said Lewis Land & Lumber Company said invoice or statement hereinabove set out caused defendant to surrender possession of said lumber as aforesaid."

The ninth ground of demurrer to this plea is as follows: "It does not appear, from the invoice or statement set out in the plea, that there was any lumber of the dimensions of that alleged in the complaint to have been converted."

The amended plea 2 is exactly similar to the original plea 2 down through and including the words, "F. O. B. Mill," and, while there is a more extended allegation of the custom, etc., there is no allegation that the lumber delivered to the Lewis Land & Lumber Company was the lumber sought to be recovered as described and set out in the complaint.

The fifteenth ground of demurrer raises the same question as that raised in the demurrer above set out.

McIntosh & Rich, for appellant.

Inge & Armbrecht, for appellee.

McCLELLAN J.

Plea 2 as originally filed, and as amended after demurrer sustained, sought to invoke, against a recovery by plaintiff in its action for the conversion by defendant of the lumber described in the complaint, in that it was wrongfully delivered by defendant, a common carrier, to the custody of which for transportation to plaintiff it was committed, an estoppel by act or misrepresentation under a custom known to plaintiff and prevailing between these parties in the delivery of lumber consigned to plaintiff at Mobile. The principle indicated by our statement is, of course, familiar, and is a defense when the facts squaring to the...