Roberts Cotton Oil Co. v. Grady

Hart, J., (after stating the facts). 1. It is insisted by counsel for plaintiff that the judgment should be affirmed because it is not expressly stated in the bill of exceptions that it contains all of the evidence introduced at the trial. The record shows that the plaintiff, to maintain the issues on his part, introduced certain named witnesses, whose testimony follows. It then recites that the plaintiff rested. The defendant called certain witnesses, whose testimony is set out. The defendant then rested. The record then recites that the plaintiff recalled a witness, and then closed its testimony. The record then shows that the plaintiff abandoned his claim for the car of seed sued for in the third paragraph of the complaint, and that all consideration thereof was by the court withdrawn from the jury. The record then shows the court proceeded to instruct the jury. It will be noticed that, while it is not expressly stated in the bill of exceptions that it contains all of the evidence introduced at the trial, such fact is to be inferred from its general tenor. We have frequently held that the requirement that the bill of exceptions contain all of the testimony in a case is sufficiently complied with if it appears inferentially that all of the evidence is brought up. Walker v. Noll, 92 Ark. 148; Overman v. State, 49 Ark. 364; Leggett v. Grimmett, 36 Ark. 496. The cases cited by plaintiff on this question are not in point under the state of facts as disclosed by the record. In each of the cases cited by him there was an affirmative showing that the bill of exceptions did not contain all of the evidence. 2. It is contended by counsel for defendant that the court erred in refusing to give the following instructions, asked by it: “The acceptance of a bill of lading from a common carrier by plaintiff for a car of seed shipped to Brown Oil Company at St. Louis constitutes a delivery to Brown Oil Company by the plaintiff; and, if the seed so billed and delivered was not by the carrier delivered, the plaintiff’s cause of action is against the carrier and the Brown Oil Company, if he has not yet received compensation therefor from some other source.” We think he is correct in this contention. The plaintiff’s own evidence shows that he sold the car of seed in question to the Robert B. Brown Oil Company of St. Louis, Missouri, and shipped the same to it on November 21, 1910. The secretary of the Brown Oil Company, a witness for the plaintiff, testified that his company held the bill of lading issued by the Jonesboro, Lake City & Eastern Railroad Company, dated November 21, 1910, for the car of seed in question. It is a settled law in this State that the delivery of goods to a common carrier, when made in pursuance to an order to ship, is in effect a delivery to the consignee. Harper v. State, 91 Ark. 422; Bray Clothing Company v. McKinney, 90 Ark. 161; Gottlieh v. Rinaldo, 78 Ark. 123, and cases cited. Consequently, under the facts in this case as disclosed by the record, the plaintiff had neither the title nor the right to the possession of the car of seed in question, and had no right to maintain this action. It is urged by counsel for plaintiff that the instruction was refused because Grady testified that under his contract with the Brown Oil Company the loading and consignment of the car to that company was not a delivery to it, and that it did not become liable to him for anything until the car was received, inspected and unloaded at St. Louis. In answer to this, we have not been able to find any testimony to that effect in the record. The facts as disclosed by the record are substantially as we have stated them, that is to say, the record shows that the plaintiff sold the car of seed in question to the Brown Oil Company of St. Louis and consigned the same to it, taking a bill of lading therefor from the Jonesboro, Lake City & Eastern Railroad Company. Under this state of the record (and we can only review assignments of error upon the record as presented to us), the instruction under consideration should have been given; for, as we have already seen, according to the uniform current of decisions in this State, where goods are delivered to a common carrier pursuant to a contract authorizing shipment, a delivery to the carrier is held to be a delivery to the consignee, so as to cast upon the latter a liability for any loss resulting in transit. Bray Clothing Company v. McKinney, supra, and cases cited. For the error in refusing to give instruction numbered 2 at the request of the defendant, the judgment will be reversed, and the cause remanded for a new trial.