Thompson v. Alabama Midland R. Co.

• Decision Date: 30 November 1898
• Citation: 24 So. 931,122 Ala. 378
• Parties: THOMPSON v. ALABAMA MIDLAND R. CO. [1]
• Court: Alabama Supreme Court

24 So. 931

122 Ala. 378

THOMPSON v. ALABAMA MIDLAND R. CO. ^[1]

Supreme Court of Alabama

November 30, 1898

Appeal from circuit court, Montgomery county; John R. Tyson, Judge.

Action by J. A. Thompson against the Alabama Midland Railroad Company, in justice's court. From a judgment of the circuit court reversing the justice's judgment for plaintiff, and finding for defendant, plaintiff appeals. Affirmed.

The complaint contained two counts. In the first count the plaintiff claimed $50 damages, and alleged that the defendant was a common carrier engaged in the carriage of freight and passengers between Montgomery and Ramer; that on the 26th February, 1897, it issued a receipt or bill of lading for a car of ear corn and delivered the same to Jones & Ray merchants in the city of Montgomery, Ala., and at the time of the issuance of said receipt or bill of lading, defendant did not have the corn in its possession, and that the same was not delivered to it until the 28th February; that on the 26th February, plaintiff negotiated with Jones & Ray for the sale of the corn, and they delivered the bill of lading to him; be further alleges that the bill of lading purported to show that the goods were held by defendant ready for shipment to Ramer, and that defendant ran daily trains to Ramer from Montgomery, and plaintiff knew that fact; that for, to wit five days after the time of sale the defendant failed to forward the goods to Ramer, and plaintiff not knowing that the same were not in defendant's possession at the time of the issuance of the bill of lading, or had not been forwarded to Ramer, went to the expense of sending a large number of wagons and drivers to the depot at Ramer, to haul away the goods, on the 1st day of March.

The second count of the complaint is substantially the same except that it is further alleged that the bill of lading came into plaintiff's possession in the due course of business after he had negotiated with the holders for the purchase of the goods, and that when he sent his wagons and teams to the depot at Ramer he was acting upon the belief that the goods had been in the possession of the defendant at the time of the issuance of the bill of lading, and that they had been forwarded to Ramer.

In the circuit court, the case was tried by the court on an agreed statement of facts, without the intervention of a jury. In the agreed statement of facts, it appeared that the defendant ran a daily freight train from Montgomery to Ramer; that on Friday, February 26th, a bill of lading was issued by the defendant to Jones & Ray, consigning the car of corn to the plaintiff at Ramer; that at the time of the issuance of the same the car was not in the possession of the defendant, but in the possession of the Louisville & Nashville Railroad Company; that Jones & Ray had paid the freight to the latter company, and when the bill of lading was issued, gave an order on that company to deliver the car to the defendant that the car did not come into defendant's possession until 4:20 p. m. of February 28th; that Jones & Ray induced defendant, as a favor to them, to issue the bill of lading and assigned as their reason for asking it that the plaintiff having purchased the corn desired a bill of lading therefor before he left the city for his home in the afternoon of that day, and that they wished the bill of lading to gratify him. It further appeared that the delay in the delivery of the car by the Louisville & Nashville to the defendant was due to a wreck or rush of business in the yards of the former company in the city of Montgomery. It further appeared that during the days of the week preceding the 26th February, the plaintiff was in the city of Montgomery serving on the grand jury, and on that day purchased the car of corn from Jones &amp Ray, and received the bill of lading; that he resided at Pine Level, 12 miles southeast of Ramer, and on the afternoon of that day went to his home, and that on Monday morning March 1st, supposing that the car had reached Ramer, he hired a number of wagons and teams and sent them from Pine Level to Ramer to haul the corn to his home; that the corn had not arrived, and he suffered a damage of $29.50, growing out of the hiring and use of said teams; that at the time of the purchase, plaintiff gave Jones & Ray a check with which to pay for the corn, with the understanding that they were not to present the same until Monday; that on Monday plaintiff returned to the city to serve on the grand jury another week, and when he got to Ramer he ascertained that the corn had not arrived. He came directly to Montgomery and served notice on the drawees not to pay the check, and that he then rescinded his trade with Jones & Ray. When the plaintiff ascertained that the car had not arrived at Ramer that morning, it was too late to notify his wagons and teams not to go on to Ramer that day. The car of corn arrived there some time during that night and was ready for delivery the next...