Railway Express Agency v. General Shoe Corporation

• Decision Date: 11 March 1955
• Citation: 276 S.W.2d 725,197 Tenn. 561,1 McCanless 561
• Parties: RAILWAY EXPRESS AGENCY v. GENERAL SHOE CORPORATION. 1 McCanless 561, 197 Tenn. 561, 276 S.W.2d 725
• Court: Tennessee Supreme Court

Page 725

276 S.W.2d 725

RAILWAY EXPRESS AGENCY v. GENERAL SHOE CORPORATION.

1 McCanless 561, 197 Tenn. 561, 276 S.W.2d 725

Supreme Court of Tennessee.

March 11, 1955.

William J. Harbison, Trabue & Sturdivant, Nashville, for appellant.

C. Vernon Hines, Nashville, for appellee.

TOMLINSON, Justice.

This suit arises out of the fact that Railway Express Agency failed, in final analysis, to deliver certain goods delivered to it for shipment to General Shoe Corporation.

On September 21, 1949 Sullivan Shoe Company delivered at Providence, Rhode Island, to the Railway Express Agency, a common carrier, a carton of shoes worth $135 for shipment to General Shoe Corporation in Nashville, Tennesse. After delivery was refused by the General Shoe Corporation and return was refused by Sullivan, and after ample and repeated notice by the carrier to each of these two of the location of the shoes, and of its intentions, these shoes were sold in May, 1950 by the carrier at public auction in New York. The $26 remaining from the purchase price after deduction of express charges and storage was tendered by the carrier to, and refused by, General Shoe Corporation.

On January 27, 1950, prior to the auction sale, General Shoe Corporation wrote the Nashville office of the carrier that if the shoes were still on hand to 'deliver them to 511 Main Street (Nashville) where they would be accepted'. The carrier made no reply to this letter. Nor did General Shoe make any reply to the notice which the carrier gave in early April of the intended sale at auction in May of 1950. The stipulation of the litigants is, in effect, that this letter does not amount to notice, within the meaning of the express receipt, of a claim against the carrier for failure to deliver the shoes.

It is stipulated (1) that it was not until January 3, 1951 that General Shoe gave the carrier notice that it 'would enter a claim for the non-delivery of said shoes', and (2) that formal claim for such 'non-delivery' was not made until March 30, 1951.

The uniform express receipt issued by the carrier in this transaction reads, in so far as pertinent here, as follows:

'As conditions precedent to recover, claims must be made in writing to the originating or delivery carrier within nine months after delivery of the property, or in case of failure to make delivery, then within nine months and fifteen days after date of shipment.'

As aforenoted, the date of shipment from Rhode Island to Tennessee was September 21, 1949, prior to notice of claim for non-delivery in January and March of 1951. Thereafter General Shoe Corporation instituted suit against Railway Express Agency 'for the wrongful conversion' of these shoes.

In addition to its plea of not guilty, this carrier further plead as a bar to recovery that General Shoe Corporation 'did not file a claim with defendant for its alleged loss within nine months and fifteen days from the date of shipment as required by the provisions of the Uniform Express Receipt'. The Circuit Court rendered judgment in favor of the General Shoe Corporation on the ground that the Railway Express Agency had converted the shoes 'in that on January 27, 1950, plaintiff wrote defendant, stating that if the carton of shoes, the subject matter in dispute, would be delivered to its plant on Main Street in Nashville, Tennessee, it would be accepted but the defendant sold the shoes at public auction on May 12, 1950.' This is the letter to which reference has hereinbefore been made.

Railway Express Agency has appealed. Its contention is that it makes no difference whether the suit is on the contract or for conversion, and says that this is because the failure of General Shoe Corporation to file its claim for non-delivery within nine months and fifteen days after date of shipment, as required by the express receipt, is a failure which bars General Shoe Corporation from a recovery.

Defendant-in-error, General Shoe Corporation, says that if this were 'an ordinary suit for loss or damage in shipment or non-delivery of part shipment', (Emphasis supplied), it would have been necessary for General Shoe to have filed its claim within the time provided by the express receipt, as a condition precedent to recovery, but that 'this suit is based on the common law right to sue for conversion' wherein, so it says, no notice of the claim for the loss is required.

In quoting from the above stated insistence of General Shoe Corporation emphasis has been placed upon the words 'non-delivery of part shipment'. This is because, in reading the contract provision in the uniform express receipt, we are unable to find therein anything which indicates an intention to make a distinction as to requirement for notice in case of ...