Myar v. St. Louis Southwestern Railway Co.

• Citation: 76 S.W. 557,71 Ark. 552
• Parties: MYAR v. ST. LOUIS SOUTHWESTERN RAILWAY COMPANY
• Decision Date: 24 October 1903
• Court: Arkansas Supreme Court

76 S.W. 557

71 Ark. 552

MYAR v. ST. LOUIS SOUTHWESTERN RAILWAY COMPANY

Supreme Court of Arkansas

October 24, 1903

Appeal from Ouachita Circuit Court CHAS. W. SMITH, Judge.

Affirmed.

Judgment affirmed.

Thornton & Thornton, for appellant.

Appellee is bound by the acts of its agent within the scope of his apparent authority. 55 Ark. 629; Mech. Ag. §§ 86 283, 289; 42 Ark. 99; 25 Ark. 262. The non-production of evidence within the power of a party creates a strong presumption that, if produced, it would be against him. 32 Ark. 346; Brad. Ev. 602; 33 N.Y. 508; 92 N.Y. 554; 17 Tex.App. 452. There is no presumption in favor of private laws. Brad. Ev. 598. The fact that it was the duty of the judge to publish notice of an election raises no presumption that it was published. 88 Ala. 158. The burden of proving that notice was given was on appellant. 51 Ark. 41; 33 Ark 744; 19 Ark. 145; 59 S.W. 134; 158 U.S. 101.

Sam H West and Gaughan & Sifford, for appellee.

The title in the cotton remained in the shipper until delivered to consignee. 50 Ark. 20. The time of the effectiveness of a rate fixed by the railroad commission is not dependent upon the publication of the same. 59 S.W. 134. The railroad commission had no authority or power to establish rates. 162 U.S. 184; 167 U.S. 479. A contract to carry for appellant cotton at a lesser rate than for any other shipper would have been void. Const., art. 12, §§ 10, 12; 66 Ark. 348.

OPINION

BATTLE, J.

On the 12th of April, 1900, Henry W. Myar brought an action against the St. Louis Southwestern Railway Company to recover the possession of certain 196 bales of cotton, which he alleged that the defendant held without right. The defendant answered, denying the plaintiff's right of possession, and alleging as follows: "That it is entitled to the possession thereof because it then had the same in its possession as a common carrier, having shipped the same from Waldo, Arkansas, to shipper's orders, for which service it had a lien on said cotton for its freight charges, amounting to $ 241.64, which charges were not paid nor tendered before the institution of this suit, nor before the service of said order of delivery; nor did the plaintiff deliver up nor tender the bill of lading for said cotton, they being consigned to the shipper's orders, before the institution of this suit or the service of said writ of possession or order of delivery."

To this answer the plaintiff replied as follows: "That he denied that defendant had a lien on the cotton mentioned in the complaint for the sum of $ 240.64, as common carrier or otherwise, but alleges the truth to be that plaintiff contracted with defendant as a common carrier to transport said cotton from Waldo, Arkansas, to Camden, Arkansas, for the agreed price of $ , to be paid defendant on the delivery of said cotton to him at Camden. That on the arrival of said cotton at Camden, plaintiff tendered to said defendant in lawful money of the United States the sum of $ 66.66, the same being the full amount for which defendant agreed to transport and deliver said cotton at Camden, and demanded of the defendant the delivery of the cotton, which was refused. And plaintiff here brings into court and deposits for the benefit of defendant the said sum of $ . Plaintiff says that at the time of said demand the defendant waived the delivery of the bill of lading when plaintiff ordered it."

The evidence adduced at the trial of the issues in the case tended to prove, substantially, the following facts: The plaintiff, Henry W. Myar, on or about the 6th of April, 1900 sent his agent, L. B. Stone, to Waldo, in this state, to purchase the cotton in controversy of two men, Fincher and Askew, if he could do so upon reasonable terms. Before making any effort to purchase the cotton, Stone saw the agent of the defendant, St. Louis Southwestern Railway Company, at Waldo, and asked him what the rate of the defendant was for transporting uncompressed cotton from Waldo to Camden, a distance of about thirty-five or thirty-six miles, and was informed that it was 15 cents on the 100 pounds. He previously made the same inquiry of defendant's agent at Camden, and was informed that it was 25 cents on the 100 pounds. This was done about the time he left Camden to go to Waldo to purchase the cotton. He bargained with Fincher and Askew for the cotton, but did not receive...