Truluck v. Carolina Portland Cement Co.

Bloodwokth, J. (After stating the foregoing facts.) The principal question for determination is whether it was before or after the contract between Loris Lumber Company and Carolina-Portland Cement Company, the defendant, for the sale of the lumber had been entered into and performed, that it was disclosed that the lumber company was acting as agent for Truluck, the plaintiff. If the principal, Truluck, was concealed until after the contract between the lumber company and the cement company had been executed and the rights of the parties thereto had become fixed, then there can be no doubt as to the right of the defendant to set up his claim against Loris Lumber Company. The order for the lumber, a copy of which was made a part of the statement of facts, provided that.the lumber was to be shipped “f. o. b. mill” at Loris, South Carolina, and expressly stipulated, “If order can not be filled as given, do not make any changes without first advising us and securing our permission for change in writing. If the order as given is not in conformity with your understanding, re [504] turn at once writing fully.” Thus it will be seen that the offer was made to and could be accepted by the Loris Lumber Company only, and all that was necessary to complete the contract was the delivery by the lumber company of the lumber ordered to the common carrier at its mill in South Carolina. The appellate courts of this State have uniformly held that where the place of shipment is specified, “in the absence of an agreement to the contrary, delivery of freight to a common carrier is regarded as delivery to the consignee.” McCook v. Halliburton-Myers Co., 14 Ga. App. 381 (1) (80 S. E. 863); McCullough v. Armstrong, 118 Ga. 424 (2) (118 S. E. 424); Falvey v. Richmond, 87 Ga. 100 (2), 101 (2) (13 S. E. 261), and citations. Under the rulings in the foregoing cases the lumber was delivered to the defendant on May 5, 1923. There is no contention on the part of the plaintiff that the defendant, prior to the receipt in Atlanta on May 10 of the invoice referred to in the agreed statement of facts, had any notice whatever that the lumber company was acting as the agent of the plaintiff. Granting that the lumber company was the agent of Truluck, the Carolina Portland Cement Company pleaded, and the record showed, that it had no knowledge of the agency until after the shipment was made and title to the lumber had passed to the defendant and its rights had become fixed. This being true, the Carolina Portland Cement Company would be entitled to set off any claim that it might have against the agent, and Truluck was not entitled to a judgment against it. Civil Code (1910), § 3604; Durant Lumber Co. v. Sinclair Lumber Co., 2 Ga. App. 210 (4), 213 (4) (58 S. E. 485), and citations; Savannah Trust Co. v. National Bank of Savannah, 16 Ga. App. 724 (3) (86 S. E. 49); Bond v. McEntire, 137 Ga. 438 (73 S. E. 652) ; McConnell v. East Point Land Co., 100 Ga. 129 (2), 134 (2) (28 S. E. 80). The judge of the superior court did not err in sustaining the certiorari and in rendering final judgment for the plaintiff. Judgment affirmed. Broyles, G. J., and Luke, J., concur.