Wolff v. Southern Ry. Co

• Decision Date: 28 February 1908
• Citation: 130 Ga. 251,60 S.E. 569
• Parties: WOLFF . v. SOUTHERN RY. CO.
• Court: Georgia Supreme Court

60 S.E. 569

130 Ga. 251

WOLFF .

v.SOUTHERN RY. CO.

Supreme Court of Georgia.

Feb. 28, 1908.

Actions—Misjoinder—Contract and Tort.

A cause of action arising ex contractu and a cause of action arising ex delicto cannot be joined in the same suit.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 1, Action, §§ 409-489.]

(Syllabus by the Court.)

Error from Superior Court, Bibb County; W. H. Felton, Jr., Judge.

Action by Edward Wolff, for the use of Solomon Bros. & Co., against the Southern Railway Company. Judgment for defendant, and plaintiff brings error. Affirmed.

Edward Wolff, for the use of Solomon Bros. & Co., brought an action against the Southern Railway Company. The petition contained four separate counts, each being in lettered paragraphs. As it stood after it was finally amended, each count therein, after alleging, in paragraph "a", that the defendant "is a railroad corporation doing business as a common carrier in said county, " etc., alleged: "(b) That on March 20, 1902, in Bibb county, Ga., petitioner entered into a contract with the defendant, by which the defendant undertook to transport 1, 400 bales of compressed cotton linters to Brunswick, Ga., and thence via the Strachan Line of steamers, expecting to sail about the 10th of April to Bremen, Germany. Freight on said cotton contracted to be paid the defendant was on a basis of 40 cents per 100 from Macon. That said contract was entered into upon the stipulation of the defendant in said contract that it had purchased from the Strachan Line for petitioner room upon said boat, or ship, about to sail on April 7th. (c) That petitioner was acting, in making said contract, for his usees, Solomon Bros. & Co. (d) That the defendant railway company understood at the time of making said contract that petitioner was to purchase said linters at various points in the states of Georgia and Alabama for said shipment. That the cotton was not to be shipped through Macon, but the distance from Macon to Brunswick was the basis upon which said freight rates were to be determined on all cotton shipped under said contract. (e) That, in pursuance of said contract, petitioner, being induced by the representation and agreement as aforesaid to transport said cotton on said steamer so about to sail on said date, petitioner himself and through other agents of the said usees purchased for said usees 1, 400 pales of cotton linters and delivered the same to the defendant in ample time, under said contract, for the defendant to have transport ed said cotton to Brunswick, and to have loaded the same on the Strachan Line of steamers, expecting to sail about April 10, 1902. (f) That among said purchases was a shipment of 412 bales of linters purchased from Knight, Yancey & Co., in Decatur, Ala., and which was delivered to the defendant by Knight, Yancey & Co., for petitioner's usees on March 21, 1902, which was in ample time for the defendant to have transported the same to Brunswick in accordance with their contract to load the same upon said steamers. That at the time of the delivery of said cotton to the defendant, or its connecting lines for it, the defendant was notified that said cotton had been purchased under said contract, and was to be shipped under and in accordance with said contract to Solomon Bros. & Co., the consignees thereof, and who were petitioner's usees, and said company agreed with petitioner to receive said cotton on said contract and so to ship the same. (g) That the defendant railway company, concealing from said Knight, Yancey & Co. its contract with petitioner, and failing to disclose the same to said Knight, Yancey & Co., gave to said Knight, Yancey & Co. on the receipt of said 412 bales of cotton a bill of lading in which it was stipulated, in fraud of the contract made by petitioner with said railway company, that the said railway company's liability would terminate on the delivery of said property to the steamship or master, agent, or servant, or to the steamship company, or the steamship pier, which bill of lading with said clause therein was accepted by said Knight, Yancey & Co. without notice of said contract with petitioner. That said bill of lading further failed to stipulate, in fraud of petitioner's rights under said contract, that said cotton was to be transported to said Brunswick and delivered to said Strachan Line of steamships, expecting to sail on or about April 10, 1902, which fact was likewise unknown to said Knight, Yancey & Co. (h) That on or about April 10, 1902, the Strachan Line of steamers, in which defendant by its contract should have purchased room for petitioner, sailed from Brunswick to Bremen, Germany, and reached the latter port on or about May 1, 1902. (i) That the defendant company failed to have said 412 bales of cotton hereinbefore described placed upon said Strachan Line of steamers that did so sail on or about April 10th, and did procure the same to be loaded on a ship of said line leaving on or about July 10, 1902, and which latter ship did not reach Bremen until about the 31st day of July, 1902. (j) That said 412 bales of cotton linters weighed 198, 785 pounds. That the market price of said cotton between the 1st day of May, 1902, and the 31st day of July, 1902, in Bremen declined three-fourths cent per pound, and thereby petitioner incurred a loss of $1,490.88 in the market value of said cotton between said time, and the further loss of $64.88 interest, making a total loss of $1,555.56 byreason of said delay." After making these allegations, the first count continued as follows: "(k) That by reason of the breach of said contract of the defendant in not having said cotton placed upon said line of steamers expecting to sail on April 10, 1902, the defendant railway company became liable to petitioner in said sum of $1,555.56 loss incurred by petitioner as aforesaid. (1) That petitioner has made a demand on the defendant railway company for said sum, and the defendant refused to pay the same, whereby the defendant became liable to petitioner in said sum of $1,555.56, with interest thereon from July 31, 1902." The third count concluded as follows: "(k) Petitioner further shows that on said loss having accrued upon petitione...