Terracina v. Yazoo & M. V. R. Co.

• Decision Date: 02 March 1934
• Docket Number: 4778
• Citation: 152 So. 771
• Parties: TERRACINA v. YAZOO & M. V. R. CO
• Court: Court of Appeal of Louisiana — District of US

152 So. 771

TERRACINA v. YAZOO & M. V. R. CO

No. 4778

Court of Appeal of Louisiana, Second Circuit.

March 2, 1934

Bryan E. Bush, of Shreveport, for appellant.

Wise Randolph, Rendall & Freyer, of Shreveport, for appellee.

OPINION

MILLS Judge.

The written opinion of the trial judge states the facts and decides this case correctly. We therefore adopt it as our own:

"Plaintiff seeks to recover the value of three shipments of cigarettes from the American Tobacco Company of Durham, N. C.; the defendant being the delivering carrier, and allegedly failing to deliver same.

"The defendant admits the receipt of the cigarettes, and claims to have delivered same to plaintiff through his agent. It alleges that these particular shipments were delivered in accordance with a custom of long standing and plaintiff is estopped from now contesting the authority of the agent.

"The shipments were actually delivered to W. F. Whitford, who was working for one A. C. Morris.

"Plaintiff had a store and purchased his cigarettes from a jobber paying a higher price than if bought from the manufacturer. Morris was in the jobbing business and proposed to plaintiff that plaintiff purchase cigarettes from the manufacturer for him (Morris) and that he (Morris) would let plaintiff have what he wanted at the original cost; in other words, Morris was just using the credit of plaintiff. This will be referred to later.

"This went on for several months, beginning in March and ending in July. Every shipment up to that of July 14th was receipted for by either Morris or Whitford and not by plaintiff. All shipments were consigned to plaintiff open bill of lading, nonnegotiable. Such a bill does not have to be surrendered to the carrier, and we are satisfied none was surrendered.

"Plaintiff testified that he knew Morris was getting the cigarettes all along and that it was all right for him to get them so long as he paid for them before he got them; he further testified that he thought Morris could not get them from the railroad company without a bill of lading; that when Morris would pay for a shipment the bill of lading would be given him and he could then get delivery; that the three shipments sued for had not been paid for by Morris, and the bills of lading had not been delivered to him. Plaintiff says the bills were lost by his son. The son says he lost some bills of lading, but could not say they were the ones in question.

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