Dixon v. . Davis

Staot, J. On Thursday, 26 February, 1920, tbe defendant placed a car at Edgerton’s Siding, Raleigb, N. C., to be used in transporting and carrying 49 bogs and one pony for tbe plaintiff to Earmville, N. C. Plaintiff bad advertised said bogs for sale at one o’clock on Saturday, 28 February, 1920. This fact, it is alleged, was communicated to tbe defendant’s agent, and be assured tbe plaintiff that said shipment would be delivered in Earmville in ample time for tbe sale as advertised. Tbe livestock did not reach Earmville until some time Saturday night, and was unloaded early Sunday morning. This action is brought to recover damages for delay in transit and resultant injury arising therefrom. Plaintiff bases bis action on an alleged oral contract made witb tbe defendant; and tbe first issue is addressed to tbe finding of this fact, *209 which was denied by the defendant. Smith v. R. R., 163 N. C., 143; Hamilton v. R. R., 96 N. C., 402. At the trial plaintiff admitted signing a special livestock contract, containing certain limitations and provisions in regard to his right to maintain an action like the present, and the fifth, sixth, seventh, and eighth issues were directed to questions appropriately arising therefrom. There was evidence on behalf of the plaintiff tending to show that he thought he was signing a regular bill of lading rather than a special livestock contract. He testified as follows: “I did not sign but one paper for the railroad company. They gave me a bill of lading. . . . It was different from this paper. I did not have any idea what I was signing when I signed that paper.” By the court: “Q. You say that is your signature to the paper, and you can read and write? A. Yes. “Q. Why did you not read over the paper? A. I just did not take time to read over the paper.” As bearing upon this phase of the case, his Honor charged the jury as follows: “The plaintiff has admitted, upon being shown the paper, that he signed the paper which has been offered in evidence; but the plaintiff’s contention is that he was told to sign a paper of a different character, a bill of lading, and that he was misled by the act of the agent of the defendant into signing a different paper, and, though he was able to read and write, he had no opportunity to do so, and was misled as to the character of the paper he was signing, and therefore he is not hound by the written paper which bears his signature.” Defendant excepted to this portion of the charge, and contended, first, that there was no allegation of any fraud or mistake in the execution of the contract; and, second, that the evidence offered by the plaintiff was not sufficient to warrant the foregoing instruction. We think the exception must be sustained, certainly upon the first ground (Graves v. Trueblood, 96 N. C., 498), if not upon the second. Proof without allegation is as unavailing as allegation without proof. McCoy v. R. R., 142 N. C., 383. There was no stipulation in the written contract calling for delivery of the shipment at any particular time; and across the face of said instrument was stamped the following: “Bead this contract. It is agreed that this contract contains the entire bargain between the shipper and the company, and that no conversation between owners or attendants of the livestock shipped hereunder and representatives of the company shall alter, vary, or add to said contract or be valid.” Sections 8 and 11 of the written contract were as follows: “8. That as a condition precedent to any right to recover any damage for loss or injury to said livestock, notice in writing of the claim therefor shall be given to the agent of the carrier actually delivering said livestock *210 wherever such delivery may be made, and such notice shall be so given before said livestock is removed or is intermingled with other livestock.” “11. No suit or action for the recovery of any claim for damages, loss, injury, or delay to the livestock shall be brought against any carrier, and only against the carrier on whose line the injury or delay occurred, unless begun within ninety (90) days from the happening thereof, and if begun later the lapse of time shall be conclusive evidence against the validity of such claim, any statute of limitations to the contrary notwithstanding.” It will be observed that the jury failed to answer the sixth, seventh, and eighth issues, the seventh issue being directed to the above provisions of the 11th section of the contract. This matter is not covered by the fifth issue, for the court practically instructed the jury that, under the evidence (which was not essentially unlike that in the case of Horse Exchange v. R. R., 171 N. C., 65), the requirements of the provisions of the 8th section of the contract had been waived. Schloss v. R. R., 171 N. C., 350; Mewborn v. R. R., 170 N. C., 210; Baldwin v. R. R., 170 N. C., 12, and Kime v. R. R., 160 N. C., 457. The verdict, therefore, was incomplete, and, in any event, the cause must be remanded for a new trial. This was not an interstate shipment, as was the case of Bryan v. R. R., 174 N. C., 177. It is established by the clear weight of authority that the parties to a contract of shipment may fix a given time, shorter than that allowed by the general statute of limitations, within which suit for breach of the contract shall be brought, and, in the absence of any unusual or extraordinary circumstance, such a stipulation, if reasonable, will be enforced. Thigpen v. R. R., ante, 33, and cases there cited. The present suit was commenced by the issuance of summons on 18 December, 1920, more than nine months after the alleged breach of contract occurred. New trial.