Nashville, C. & St. L. Ry. v. Abramson-Boone Produce Co.

• Decision Date: 15 February 1917
• Docket Number: 7 Div. 828
• Citation: 74 So. 350,199 Ala. 271
• Court: Alabama Supreme Court
• Parties: NASHVILLE, C. & ST. L. RY. v. ABRAMSON-BOONE PRODUCE CO.

74 So. 350

199 Ala. 271

NASHVILLE, C. & ST. L. RY. v. ABRAMSON-BOONE PRODUCE CO.

7 Div. 828

Supreme Court of Alabama

February 15, 1917

Appeal from City Court of Gadsden; John H. Disque, Judge.

Action by the Abramson-Boone Produce Company, suing for J.M. Smith &amp Co., against the Nashville, Chattanooga & St. Louis Railway. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 449 Affirmed.

Goodhue & Brindley, of Gadsden, for appellant.

Forman & Davis, of Gadsden, for appellee.

GARDNER J.

J.M Smith & Co., a partnership doing business at Gadsden. Ala., ordered through one Harris, a broker, a carload of hay which was to come from the Abramson-Boone Produce Company of Idaho. The hay was shipped November 22, 1913, and arrived in Gadsden December 16th following, and was delivered to J.M. Smith & Co. on December 20th. The bill of lading was issued by the Oregon Short Line Railroad, and the car of hay was consigned to the order of said Abramson-Boone company for delivery at Gadsden and indorsed by said company. Attached to the bill of lading was a draft on Harris & Co. for the purchase price of the hay. Notice of the arrival of the hay was given by the railroad company to said Harris & Co., but J.M. Smith & Co. paid the draft and delivery was made to them. In unloading the hay it was discovered that more than a hundred bales of it was greatly damaged, caused, as plaintiff insisted, by leaks in the car. The defendant company (appellant here) offered evidence tending to show that the car was in good condition, and that the hay was damaged before shipment. Plaintiff refused the hay, delivering it back to the railroad company, and brought suit to recover the damages thereby sustained. The cause was tried by the court without a jury, and resulted in a judgment for plaintiff, from which defendant appeals.

The complaint as originally framed contained two counts, one seeking damages for the conversion by the defendant company of 102 bales of hay, and the other for money had and received. It was alleged in the second count that the money claimed therein arises out of the same facts as are involved in the claim on which the first count is based. Subsequently, during the progress of the trial, the plaintiff was permitted to amend the complaint by adding counts 3, 4, 5, and 6. Counts 3 and 6 were the common counts, and 4 and 5 sought damages for defendant's failure to deliver the 102 bales of hay received by it as a common carrier for delivery to plaintiff at Gadsden.

It is first insisted that the amendment was improperly allowed, as it wrought a departure from the original cause of action. But both the pleadings and evidence disclosed that the plaintiff was seeking a recovery on account of the damaged condition of the hay on its delivery to plaintiff. The parties were the same, the subject of controversy the same, and we are of the opinion that, under our liberal system of pleading, the amendment was permissible and did not constitute a departure. Code 1907, § 5367; Gaines v. B.R.L. & P. Co., 164 Ala. 6, 51 So. 238.

Plaintiff was permitted to further amend the complaint so as to make the Abramson-Boone Produce Company, suing for the use and benefit of J.M. Smith & Co., the parties-plaintiff in the cause. The objection to this amendment, on which the fifth assignment of error is based, is not insisted on in appellant's brief.

It is insisted that, under the facts here disclosed, this action cannot be maintained by either J.M. Smith & Co. or for said company's benefit by the Abramson-Boone Company, for the reason that the hay was not consigned to the Smith Company, and up to the time of its delivery they had no title or interest in it, and the cause of action therefore rested in the Abramson-Boone Company alone, it being both consignor and consignee. In support of this contention, we are cited to the following cases: Gulf Compress Co. v. Jones Co., 172 Ala. 650, 55 So. 206; Hood v. Commercial Bank, 12 Ala.App. 511, 67 So. 721; Fletcher v. Prestwood, 150 Ala. 135, 43 So. 231; Zimmerman v. L. & N. Co., 6 Ala.App. 475, 6 So. 598; So. Ry. v. Jones Cotton Co., 167 Ala. 581, 52 So. 899; L. & N.R.R. Co. v. Allgood, 113 Ala. 163, 20 So. 986; Walter v. A.G.S. Ry. Co., 142 Ala. 485, 39 So. 87.

Under the undisputed evidence in this case, although the brokers Harris & Co., were the ostensible buyers of the car of hay, yet they were purchasing it from Abramson-Boone Produce Company for and on behalf of J.M. Smith & Co., who were the real purchasers and the parties beneficially interested in the shipment. So. Exp. Co. v. Caperton, 44 Ala. 101, 4 Am.Rep. 118; So. Ry. Co. v. Brewster, 9 Ala.App. 597, 63 So. 790. As the shipment was made by the said Produce Company as both consignor and consignee, the hay could not rightfully be delivered until payment...