Mott v. Jackson

• Decision Date: 11 May 1911
• Parties: MOTT v. JACKSON ET AL.
• Court: Alabama Supreme Court

55 So. 528

172 Ala. 448

MOTT v. JACKSON ET AL.

Supreme Court of Alabama

May 11, 1911

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

Action by John D. Mott against M. R. Jackson and others. Judgment for defendants, and plaintiff appeals. Reversed, rendered and remanded.

The complaint is as follows:

Count 1: "Plaintiff claims of the defendants the sum of $1,500 damages, for that, whereas, on, to wit, the 22d day of January, 1908, the said defendants were engaged in running a steamboat, viz., the Liberty, as a common carrier on the navigable waters of Alabama, and on or about such time promised and agreed as such carriers to and with plaintiff to receive for him for hire on the next down trip of the boat and on said trip to carry for him, a lot of staves, to wit 10,000 in number, from Davis' Bluff, a landing on the Tombigbee river, and deliver the same safely at the wharves or docks in the city of Mobile, in the state of Alabama, for a reward then and there to be paid by the said plaintiff; that plaintiff, in consideration of said promise on the part of the defendants to carry said staves, had the same placed on the margin of the river at the usual and customary place for loading that kind of freight on said steamboat, the Liberty, and when the said boat arrived on the said down trip announced himself willing to load said staves on said boat, when defendants willfully, knowingly, and wrongly neglected and refused to take said staves. And plaintiff alleges that their refusal was without just cause or good excuse, and that before plaintiff had shipped said staves by any other carrier a freshet came in the river and washed said staves away, and they became entirely lost to plaintiff."

Count 2: "Plaintiff claims of the defendants the further sum of $1,500 damages, for that, whereas, to wit, on the 22d day of January, 1908, the defendants were then and there engaged as common carriers, and that in the hauling of freight and passengers for hire over and upon the navigable waters of Alabama by means of a steamboat propelled by steam, and were using by means of transporting said freight and passengers the steamboat Liberty; that on the day and date aforesaid said defendants as such common carriers undertook and promised plaintiff to receive for him on the next down trip of the boat, and on said trip to carry and deliver for hire, a large lot of goods, wares, and merchandise, to wit, staves, of the number, to wit, of 10,000, from a certain landing on the Tombigbee river known as 'Davis' Bluff,' and to safely deliver said staves from said landing to the wharves or docks in the city of Mobile, in said state of Alabama, and plaintiff was then and there notified by said defendants, or some of them, to have said staves prepared and ready to load on said down trip, and plaintiff then and there went to great expense in hiring a large number of hands, and did prepare and place at the margin of the river said staves prepared and ready for loading in proper piles for being handled and loaded on said steamboat, or upon barges to be furnished by the same; that said boat came on said down trip according to its usual custom to the point where said staves were placed, which was a regular landing for said boat on one of the navigable rivers of Alabama, to wit, the Tombigbee river, and said plaintiff did then and there have tendered to the said boat the said staves, and requested the said boat to receive the same and transport from said landing to the wharves or docks at Mobile, Ala., and notwithstanding plaintiff was then and there able to have said staves loaded on said boat and to pay the freight thereon." And it concludes from here on as the first count, with the additional averment that the loss resulted from the negligence, carelessness, and willfulness of said defendants in refusing to accept said staves for transportation.

The third count alleges the same state of facts as the other counts, but alleges the acts complained of to be the acts of the servants or agents of the defendants in charge of or operating said boat, while acting within the line and scope of their employment.

The demurrers take the point that no consideration for the defendants' promise is alleged, and because the count does not allege that the plaintiff agreed and bound himself to ship some staves and pay the freight thereon, and others not necessary to be here set out.

Rich & Hamilton and W. D. Dunn, for appellant.

Gregory L. & H. T. Smith and William G. Caffey, for appellees.

SIMPSON J.

This action is by the appellant against the appellees, as common carriers, by water, for damages for refusal to receive freight. Demurrers were sustained to the complaint, as amended, the plaintiff refused to amend, and the errors claimed are the action of the court in sustaining the demurrers to the several counts of the complaint.

The counts of the complaint (which will be set out by the reporter) are on the contract, and not ex delicto. Wilkinson v. Moseley, 18 Ala. 288, 290, et seq.; Mobile Life Ins. Co. v. Randall, 74 Ala. 170, 176; McDaniel v. Johnston, 110 Ala. 526, 532, 19 So. 35; Southern Railway Co. v. Rosenberg, 129 Ala. 287, 30 So. 32; W. U. Tel. Co. v. Littleton, 53 So. 97.

The insistence of the appellees is that the contract set out in the several counts of the complaint is unilateral, and does not allege any consideration for the promise or any acceptance of the offer. It is familiar contract law that where one party makes an offer, dependent upon some act of the other party, and the other party performs the act, that is an acceptance of the offer, and constitutes a sufficient consideration to support the contract. 6 Cyc. 429, and notes. It is true that a mere general offer by a carrier to receive and transport goods generally would be too indefinite, and would include nothing but its common-law liability, and under such an offer a failure to receive goods for shipment would be subject to the defenses applicable to an action on the common-law duty, such as that the vessel was already loaded to its full capacity; but when the carrier says to the shipper, "I will receive and carry your freight at a...