Vaccaro Bros. & Co v. Farris, (No. 4499.)

• Court: Supreme Court of West Virginia
• Writing for the Court: MEREDITH, J
• Citation: 115 S.E. 830
• Parties: VACCARO BROS. & CO. v. FARRIS et al.
• Decision Date: 23 January 1923
• Docket Number: (No. 4499.)

115 S.E. 830

VACCARO BROS. & CO.
v.
FARRIS et al.

(No. 4499.)

Supreme Court of Appeals of West Virginia.

Jan. 23, 1923.

(Syllabus bp the Court.)

Error to Circuit Court, Kanawha County.

Action by vaccaro Bros. & Co. against John Farris and others. Judgment for defendants, and plaintiff brings error. Reversed, verdict set aside, and case remanded for new trial.

Morton, Mohler & Peters, of Charleston, for plaintiff in error.

E. L. Stone and Horan & Pettigrew, all of Charleston, for defendants in error.

MEREDITH, J. Plaintiff sued in assumpsit to recover $906.10, with interest from July 17, 1919, being the purchase price of a carload of bananas, with initial icing charge. Defendants pleaded nonassumpsit and filed notice of recoupment The jury returned a verdict in favor of plaintiff for $600; plaintiff made a motion to set aside the verdict and award it a new trial, claiming it was contrary to the law and the evidence, and assigns various other errors. The motion was overruled, and judgment was entered on the verdict. Plaintiff obtained a writ of error.

To dispose of the assignments of error It is necessary to consider the evidence. The record shows that the plaintiff was engaged in raising and importing tropical fruits, with offices in New Orleans, and plantations near La Ceiba, Honduras, Central America, between which points it operated a steamship line for carrying fruits to New Orleans. From that point plaintiff marketed its fruits in the United States. The bananas were assorted according to grade, loaded in refrigerator cars, and these cars were placed in trains of about 50 cars each. After loading, the shipper placed about three tons of ice In the bunkers of each car to preserve the fruit. This initial icing is charged to the consignee by the shipper. Thereafter, in case additional icing is necessary, it is done by the carrier, and the icing charge is added to the freight bill, and paid by the consignee.

Plaintiff sold its bananas in carload lots. When sold before leaving New Oreans they were sold f. o. b. New Orleans. Sometimes loaded cars were put in trains going north and were sold while moving. In such cases they were sold "rolling" f. o. b. New Orleans. The defendants, prior to the present sale, had been conducting their main business in

[115 S.E. 831]

Toledo, Ohio, and had been doing business with plaintiff, having made frequent purchases of carload lots "rolling" f. o. b. New Orleans. They were just opening a branch business at Charleston, W. Va. They usually bought cars of fruit "rolling" rather than before being loaded, for the reason that they could be bought at a lower price. The sale in this instance was made through J. J. Geis, district manager for plaintiff. His office was then in Cincinnati, and the agreement was made by telephone, on the 7th, 8th, or 9th of July, 1919. It was confirmed by letter to defendants on the 9th. Whether it was made before the car was loaded or while it was "rolling" we think makes little difference. The parties in their evidence practically agree on the terms of the sale. Plaintiff sold defendants a carload of bananas, quality grass-green, consisting of 425 eight-hand bunches, weighing 23, 450 pounds, at $3.80 per hundredweight, f. o. b. New Orleans. They were to be of sound and merchantable quality at time of shipment, and were to be properly loaded. They were consigned to defendants at Charleston, W. Va. If they were sold to defendants after the trainload left New Orleans, then the car was diverted and reconsigned to defendants when the train reached Memphis, but the terms of the contract were the same. Defendants were to pay all charges. Plaintiff sent with the train, out of New Orleans, a messenger, whose duty it was to see that cars going to designated consignees along the route were properly and promptly diverted, that the cars were properly iced by the railroad, and to take the temperatures inside and outside each car, note the condition of the fruit therein, make proper reports of all these matters, and at the end of his division to hand his report to a messenger, who took his place on the train and performed like duties on his division. These messengers were employed and paid by the shipper, except in particular instances the consignee might employ his own messengers.

In the present instance Messenger Natale Lafauci accompanied the train from New Orleans to Memphis; there his report was turned over to Messenger Chris. Berthelson, who accompanied the train to Louisville, and saw that a car consigned to a purchaser in Huntington, another to a purchaser in Hin-ton, and the car in controversy, consigned to the defendants, were promptly diverted to the Chesapeake & Ohio Railway Company at Louisville; no messenger accompanied these three cars from Louisville, as Berthelson was required to accompany the train to Pittsburgh. Both these messengers made out the report as to these cars, and testify that the fruit was in good green condition at the time the cars left their charge. The car in controversy was Illinois Central No. 59481. Berthelson testifies that when this car was diverted at Louisville, the fruit was in good condition, a few of the bananas turning, the car was properly ventilated, its bunkers were practically full of ice. That was July 10th. That same day he telegraphed defendants: "Diverted 59481, good. Plugs out vents on iron. Protect." The car left Louisville probably before noon on July 10th and reached South Charleston over the Chesapeake & Ohio Railway at 5:35 p. m., July 12th, making the run in the usual time. Whether it was re iced during this period does not appear. The terminal yard of the Chesapeake & Ohio Railway is at the southern end of the South Charleston bridge. Freight from that railway for Charleston is brought over...