Southern Ry. Co. v. Brewster

• Decision Date: 13 November 1913
• Citation: 63 So. 790,9 Ala.App. 597
• Parties: SOUTHERN RY. CO. v. BREWSTER.
• Court: Alabama Court of Appeals

63 So. 790

9 Ala.App. 597

SOUTHERN RY. CO. v. BREWSTER.

Court of Appeals of Alabama

November 13, 1913

Appeal from Circuit Court, Jackson County; W.W. Haralson, Judge.

Action by Mike Brewster against the Southern Railway Company for the value of a bale of cotton. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

The complaint as originally filed named Mike Brewster as plaintiff and the Southern Railway Company as defendant, and was in code form for suits on bills of lading for loss of goods. The amendment was by adding the matters set out in the opinion, and by further adding that Brewster is not the beneficial owner of the said claim here sued on. The charges set out in the assignments of error referred to are as follows:

"(25) If the jury believe from the evidence in this case that the number of bales of cotton were delivered, there can be no recovery in this case for anything more than the difference in value between the missing bales and the bale delivered in its place, with interest thereon.

"(26) If the jury believe from the evidence that Gullatt shipped 163 bales of cotton to Knight, Yancey & Co., and that number was delivered, then there can be no recovery in this case.

"(27) General charge for defendant."

Lawrence E. Brown, of Scottsboro, for appellant.

Virgil Bouldin, of Scottsboro, for appellee.

THOMAS J.

The plaintiff, as named in the original summons and complaint was Mike Brewster. At the trial, by leave of the court first had and obtained, the complaint was amended so as to make "J.F. Gullatt, suing for the use of Mike Brewster," instead of Mike Brewster, the plaintiff in the action. There was no error on the part of the court in permitting this amendment. Code, § 2490; Am. Union Telegraph Co. v. Daugherty, 89 Ala. 191, 7 So. 660; Harris v. Plant & Co., 31 Ala. 639; Cowan v. Campbell, 131 Ala. 211, 31 So. 429; Babcock v. Carter, 117 Ala. 575, 23 So. 487, 67 Am.St.Rep. 193. [ 2] Besides, if there were, the defendant is in no position to sustain his assignment of error predicated thereon, since it does not appear that he either objected or excepted to the action of the lower court. Presumptively, therefore, the amendment was allowed with his consent. Nor did the court commit error in overruling defendant's demurrer to the complaint as twice amended, which was in substantial compliance with the code form (15) prescribed for suits on bills of lading of common carriers. L. & N.R.R. Co. v. Allgood, 113 Ala. 163, 20 So. 986; So. Ry. Co. v. Proctor, 3 Ala.App. 413, 57 So. 513.

The allegations of such a complaint may be sustained even by proof of a special contract with the carrier, wherein its common-law liability is limited. L. & N.R.R. Co. v. Landers, 135 Ala. 510, 33 So. 482; So. Ry. Co. v. Webb, 143 Ala. 310, 39 So. 262, 111 Am.St.Rep. 45, 5 Ann.Cas. 97.

And the consignor may maintain the suit though another is named in the bill as consignee, since the presumption that the latter has title to the goods shipped is merely prima facie, and may be overcome by proof to the contrary. Jones v. Sims & Scott, 6 Port. 138; 4 Am. & Eng.Ency.Law, 525, 536; L. & N.R.R. Co. v. Allgood, supra; So. Ry. Co. v. Proctor, supra.

Here, there is evidence tending to show that the bale of cotton, for a failure to deliver which to the consignee named in the bill of lading the defendant is sued, was the property of Mike Brewster, the real plaintiff, and was delivered, together with other cotton, to the defendant at Hollywood, Ala., by J.F. Gullatt, the nominal plaintiff, who was named in the bill of lading as the consignor, though in shipping the cotton he was merely acting for and on behalf of said Mike Brewster, the real owner, but whose ownership, we infer, was not then disclosed to the defendant. Knight, Yancey, & Co., cotton brokers at Decatur, Ala., to whom the cotton was being shipped for sale and remittance, were named as consignees. Under this state of facts, we think a suit for a failure to deliver the cotton to the consignee named in the bill may be properly brought, as it is, in the name of the consignor therein named, for the use of the real owner and shipper of the property, where, as here, the bill of lading itself (the contract of carriage) has not been indorsed or formally transferred by such consignor to such owner of the property. Code, §§ 5546, 5158. It is simply the case of an undisclosed agent, suing for the use of his principal on a written contract made with him personally. Fry v. Carter & Howell, 25 Ala. 479; Mason v. Hall, 30 Ala. 599; Rice v. Rice, 106 Ala. 636, 17 So. 628.

Section 2489 of the Code, requiring all suits upon promissory notes, bonds, or other contracts, express or implied, "for the payment of money," except instruments governed by the commercial law, to be prosecuted in the name of the party really interested, whether he has the legal title or not, has no application to the contract here sued on, since it is not one for "the payment of money," but one for the transportation and delivery of property. Code, § 5158; Sullivan v. L. & N.R.R. Co., 138 Ala. 650, 35 So. 694.

Another tendency of the evidence is to the effect that the bale of cotton, for a failure to deliver which the suit is brought failure to deliver which the suit is brought, was the property of Gullatt, the nominal plaintiff, and was shipped by him to Knight, Yancey & Co. for sale and remittance, together with 14 other bales, on the bill of lading introduced in evidence, wherein he was named as consignor; that this particular bale was short on the arrival of the shipment; that in addition to this shipment, he shipped of his cotton to them, counting the 15 mentioned, a total of 163 bales, the particular one referred to being short on arrival, so that they actually received only 162 bales in all of Gullatt's cotton; that shipments were also made by him to them of the plaintiff's (Brewster's) cotton, all of which they actually received; but that when they went to settle, they settled with Gullatt for 163 bales, though they should have settled with him for only 162, paying him for one too many, crediting him by mistake with one of Brewster's bales, and failing to pay Brewster for this bale in settling with him for his cotton. In other words, Knight, Yancey & Co., through mistake, charged Brewster with a shortage of one bale, when the shortage should have been charged to Gullatt, since it was his bale, No. 777, so numbered in the bill of lading, and...