Davis v. . Gulley

Clarkson, J. In Early v. Flour Mills, 187 N. C., p. 345, it is said: “It is the general rule in mercantile law that the risk of loss follows the title to the property. Joyce v. Adams, 8 N. Y., 291; note 26, L. R. A. (N. S.), 10. It is also the general holding that when a seller ships goods ‘order notify,’ and draws draft for purchase price, with bill of lading attached, the title and right of possession to the property are reserved by the seller until the draft is paid. No title passes to the purchaser, and any loss in transit, as between the buyer and the seller, must *82 be borne by the latter. Collins v. R. R., 187 N. C., 141; Watts v. R. R., 183 N. C., 12; Penniman v. Winder, 180 N. C., 73; Richardson v. Woodruff, 178 N. C., 46; 35 Cyc., 332.” From the agreed state of facts, the hay was shipped to Franklinton, N. C., consigned to Dyer & Company “order notify” N. Y. Gulley. The title to the hay was in Dyer & Company until the defendant paid the draft, with the bill of lading attached, to the Bank of Wake, at Wake Forest. Immediately upon the payment of the draft, he-obtained the bill of lading. The title to the hay then passed to the defendant. He became the owner of the hay, subject to the payment of the freight charges. The freight charges, including war tax, was $130.39, and the agent by mistake collected only $87.55 from the defendant. This suit is for the balance of the freight charges, $42.84, due for transportation from Omaha, Neb., to Franklinton, N. C. (The amounts are inaccurately stated in the case agreed, and we make figures to correspond with judgment.) We think the defendant liable for the amount sued for. The agreed case admits that Dyer & Company had deducted the freight charges, $127.60, from defendant’s bill for the hay. Between the shipper, Dyer & Company, and the defendant, it is conceded by the record that the defendant was to pay the freight charges. In R. R. v. Latham, 176 N. C., 417, the syllabus of the decision is given as follows: “The rates of transportation allowed carriers of freight are those established by the Interstate Commerce Commission, under the Federal statutes as to interstate commerce, and by the State Corporation Commission, under the State statutes as to intrastate commerce, which may not be affected by any agreement to the contrary between the carriers or their agents or employees and the shipper; and, notwithstanding such agreement, the carrier may demand and enforce the rates established by law.” An interstate carrier is not estopped from recovering the balance due' for a shipment by the unauthorized act of its agent in quoting an illegal freight rate. Hoke, J. (now C. J.), in R. R. v. Latham, supra, at p. 420, said: “It is coming to be more and more recognized that, with a minimum of official interference, a government is required at times to establish regulations to afford its citizens equal opportunity in their industrial and commercial life — a requirement that is nowhere more imperative than in preventing discrimination among the shippers of freight' with our public-service companies. These statutes, enacted for this purpose, and the rules and regulations thereunder, designed to effect as far as possible an equal charge for like service among all shippers, permit no deviation by agreement or attempted adjustment of the parties.” *83 James C. Davis, as agent, etc., v. R. L. Cornwell, U. S. Supreme Court Advance Opinions, p. 473 (decided 21 April, 1924). This was an action in a State court of Montana to recover damages for failure to supply the cars. The plaintiff sued on an express contract to furnish them on the day named. It was not shown or contended that the published tariffs governing the contemplated shipment provided in terms for such a contract. Mr. Justice Brandéis said: “The obligation of the common carrier implied in the tariff is to use diligence to provide, upon reasonable notice, cars for loading at the time desired. A contract to furnish cars on a day certain imposes a greater obligation than that implied in the tariff. For, under the contract, proof of due diligence would not excuse failure to perform. Chicago & Alton R. R. Co. v. Kirby, 225 U. S., 155, settled that a special contract to transport a car by a particular train, or on a particular day, is illegal, when not provided for in the tariff. That the thing contracted for in this case was a service preliminary to the loading is not a difference of legal significance. The contract to supply cars for loading on a day named provides for a special advantage to the particular shipper, as much as a contract to expedite the cars when loaded. It is not necessary to prove that a preference resulted in fact. The assumption by a carrier of the additional obligation was necessarily a preference. The objection is not only lacle of authority in the station agent. The paramount requirement that tariff provisions be strictly adhered to, so that shippers may receive equal treatment, presents an insuperable obstacle to recovery.”. (Italics ours.) Pittsburgh, etc., R. R. Co. v. Fink, 250 U. S., 577, we think on “all-fours” with the ease at bar. In that case it was held: “Under the Act to Regulate Commerce, it is unlawful for a carrier to accept less than the tariff as compensation for the interstate transportation of goods. A consignee accepting delivery of goods must be presumed to have understood this. The carrier has a lien for the lawful charges until they are tendered or paid, and a consignee who obtains the goods at destination upon payment of less, due to a misunderstanding by himself and the carrier of the rate lawfully applicable, must be deemed to have assumed the obligation of paying the full lawful rate, and is liable to the carrier accordingly. An agreement with the consignor that title to the goods shall not pass to the consignee until delivery cannot alter the situation. Nor can the hardship to the consignee, resulting from his misunderstanding and subsequent change of situation in reliance on it, since the requirements of the statute cannot be avoided by estoppel.” The Fink case, supra, is approved in Louisville & Nashville R. R. Co. v. Central Iron & Coal Co., in U. S. Supreme Court Advance Opinions, p. 503 (decided 5 May, 1924), where the whole matter is fully discussed *84 by Mr. Justice Brandéis, and in conclusion tbe opinion says: “For, under tbe rule of tbe Fink case, if a shipment is accepted, tbe consignee becomes liable, as a matter of law, for tbe full amount of tbe freight charges, whether they are demanded at tbe time of delivery or not until later. His liability satisfies tbe requirements of tbe Interstate Commerce Act.” Tbe agreed case admits, “And it (tbe bay) showed a shortage of 2,500 pounds, which did not occur on railroad, making a charge for tbe bay (by tbe shipper) $46.25 too large,” etc. Tbe defendant’s remedy is against Dyer & Company, who did not comply with their contract with him and ship tbe quantity of bay agreed on. We have carefully considered tbe case, and can find no error. Tbe judgment below is Affirmed.