N. & W. Ry. Co. v. Aylor
| Decision Date | 14 November 1929 |
| Citation | 153 Va. 575 |
| Parties | NORFOLK AND WESTERN RAILWAY COMPANY v. F. L. AYLOR, TRADING AS CLARKE MILLING COMPANY. |
| Court | Virginia Supreme Court |
1. CARRIERS OF GOODS — Unauthorized Delivery — What Constitutes a Delivery — Case at Bar. — The instant case was an action against a carrier for unauthorized delivery of a carload of flour in which there was a verdict and judgment for plaintiff. The carrier contended that there had been no delivery. The consignment was on a uniform bill of lading providing that surrender of the original order bill of lading should be required before delivery of the property. A drayman testified that he saw the agent of the delivering road and told him there was a carload of flour there for the purchasers, R. & R., and that the agent replied that there was and pointed out the car and that the drayman broke the seal and took a dray load of the flour to R. & R. who refused it and directed him to take it back. There was no specific contradiction of the drayman's testimony but the agent denied that he assented to the delivery of the contents of the car. The original order bill was not surrendered.
Held: That the conclusion of the jury was correct, that when the agent pointed out the specific car containing the flour to the drayman, this constituted the delivery of the car and the contents, which was unlawful because done without requiring the delivery of the bill of lading.
2. CARRIERS OF GOODS — Delivery of Goods by Carrier — What Constitutes Delivery — Partial Delivery — Carload Freight. — There may be a partial delivery of freight where it consists of separate articles, but when carload freight is placed upon a delivery track and a drayman is permitted to open it and commence unloading it, this is a delivery of the entire carload.
3. CARRIERS OF GOODS — Delivery by Carrier — Order Notify Bill of Lading — Surrender of Bill of Lading. — Where freight is shipped under an order notify bill of lading, delivery of the freight is prima facie wrongful unless the original order bill of lading, properly endorsed, is first surrendered to the delivering carrier.
4. CARRIERS OF GOODS — Delivery of Freight — Wrongful Delivery a Conversion of the Goods. — Wrongful delivery of goods consigned under an order notify bill of lading is a conversion of the goods by the carrier.
5. CARRIERS OF GOODS — Order Notify Bill of Lading — Delivery to Person to be Notified — Liability of Carrier. — A direction in a bill of lading, or shipping receipt, to notify a certain person of the arrival of goods which are consigned to the order of the consignor or of a third person, does not justify the carrier in delivering the goods to the person whom it is directed to notify, without the production of the bill, or shipping receipt, properly endorsed; and if the carrier does deliver the goods to him under such circumstances, it is liable for the value thereof to the holder of the bill or shipping receipt.
6. CARRIERS OF GOODS — Delivery by Carrier — Delivery to Unauthorized Person Constitutes Conversion. — The general rule is clear that any delivery of property by a common carrier thereof to a person unauthorized by the owner or the person to whom the carrier is bound by contract to deliver it constitutes a conversion, irrespective of the question of negligence or the exercise of due care, and this rule has been applied where the delivery is to the wrong person through mistake.
7. CARRIERS OF GOODS — Connecting Carriers — Liability of Initial Carrier for Wrongful Delivery. — Where goods are wrongfully delivered by the connecting carrier to an unauthorized person the initial carrier is liable for the value of goods so wrongfully delivered.
8. CARRIERS OF GOODS — Order Notify Bill of Lading — Delivery by Carrier without Requiring Endorsement or Surrender of Bill of Lading — Case at Bar. — In the instant case plaintiff, under an order notify bill of lading shipped a carload of flour over defendant's railroad. The bill of lading contained the provision that "the surrender of this original order bill of lading properly endorsed shall be required before the delivery of the property." There was a delivery of the carload of flour by the connecting carrier without the production of the original bill of lading and in violation of its terms.
Held: That the initial carrier was liable to plaintiff for the wrongful delivery of the carload by the connecting carrier without the surrender of the original bill of lading properly endorsed.
9. CARRIERS OF GOODS — Order Bill of Lading — Provision that Property Shall not be Delivered without Surrender of the Original Bill of Lading — Strict Construction of the Provision. — The strict construction of the provision in an order bill of lading that "the surrender of this original order bill of lading properly endorsed shall be required before the delivery of the property" may seem to be harsh in some close cases, but when it is remembered that a very large part of the wholesale business of the country is done upon the faith of similar contracts, that is, in carloads upon order notify bills of lading, it is obvious that any failure of the courts to enforce them strictly would be harmful.
Error to a judgment of the Circuit Court of Clarke county, in a proceeding by motion for a judgment for money. Judgment for plaintiff. Defendant assigns error.
The opinion states the case.
Weaver & Armstrong, J. O. Wiggs and James F. Wright, for the plaintiff in error.
Moore & Williams, for the defendant in error.
F. L. Aylor, trading as Clarke Milling Company, hereafter called the milling company, has recovered a judgment against the Norfolk and Western Railway Company, hereafter called the railway company, upon this state of facts:
The milling company, on August 27, 1925, consigned a carload of flour (100 barrels, packed in cotton bags, some containing ninety-six pounds, some forty-eight pounds, and the remainder twenty-four pounds per sack), to its own order from Berryville, Virginia, to Timmonsville, South Carolina, with directions to notify Rose & Rogers, of Timmonsville, S.C. The shipment was on the uniform bill of lading, prescribed by the Interstate Commerce Commission, and contained this provision:
The defendant railway company was the initial carrier at Berryville, and the Seaboard Air Line Railway the delivering carrier at Timmonsville. The milling company, plaintiff, attached the bill of lading to a draft for $816.00, which covered the price of the flour and the freight charge, and deposited the draft with the bill of lading attached with the Berryville bank, by which it was forwarded to a bank at Timmonsville, S.C., with directions to notify Rose & Rogers upon arrival, it being understood that they would pay the draft and would accept and receive the bill of lading from the Timmonsville bank. While in the custody of the Seaboard between Durham, N.C., and Timmonsville, S.C., there was some damage to the original car, and at Raleigh the flour was transferred to another car in which it arrived at its destination. The local agent for the Seaboard at Timmonsville notified Rose & Rogers of its arrival September 9th. On the following day, September 10th, the draft being unpaid and held with the bill of lading by the bank, Rose of Rose & Rogers directed their drayman, McLeod, to unload the flour from the car and deliver it to their place of business. McLeod testified that Rose told him that Turner, the agent of the Seaboard, would point the car out to him; that he went there, saw the agent on the platform and told him that Rose & Rogers had a carload of flour there, and that Turner replied: "Yes; it is that red car there" (indicating), "and I said: `Have you that seal number?' and he said: `Yes,'" and he (Turner) went away checking up other cars in the yard; that Turner did not go to the car; that he (McLeod) went to the car, broke the seal and took a drayload of the flour to Rose & Rogers, who refused it and directed him to take it back and reload it on the car.
There is no specific contradiction of McLeod's testimony, no protest or objection to the drayman's action, but Turner denies that he assented to the delivery of the contents of the car. Afterwards Rose appears to have "borrowed" the bill of lading from the bank, but he did not surrender or offer to surrender it, did not pay the draft, but with Turner entered the car and inspected its contents.
The question as to whether Turner, as the agent...
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