Alabama Great Southern Ry. Co. v. Commonwealth Cotton Manufacturing Co.

SIMPSON, J. This is an action by the consignee of 50 hales of cotton, which were, shipped by a broker in Birmingham, Ala., from -whom the plaintiff (appellee) had bought the cotton, to the appellee in North Carolina; the bill of lading having been sent to appellee, with draft attached, which was paid. It is acknowledged that the cotton actually received by the carrier was delivered; the damages being claimed because the bill of lading stated the weight of the cotton to be 25,637 pounds, when, in fact, it weighed only 11,305 pounds. It is agreed that the railroad company's agent did not weigh the cotton when it was received, but accepted the weights as set out in the bill of lading by the shipper, and that the “railroad company had no knowledge or notice that the weight of the cotton was not as described in the bill of lading, and that said company issued said bill of lading upon a certificate furnished it by the shippers from the — 398 — compress company, stating that the shippers had delivered to said compress company for shipment 50 hales of cotton of the weight of 25,037 pounds.” Said cotton was delivered to the carrier by the compress company in a sealed car, and the particular weight shown in the exhibit was made out by the shipper, and not by the carrier's agent. The bill of lading contained the words (after acknowledgment of the receipt of property described below) “Contents and condition of contents of package's unknown.” The general principle is, in so far as a bill of lading is a receipt, it is “only prima facie, exidenee that the carrier has received the goods, or that it has received the quantity named; and, like all mere receipts, they may be shown to have been given by mistake or not to speak the truth.” — Hutchinson on Carriers (2d Ed.) § 122. The practice among carriers or their agents of signing bills of lading before the actual receipt of the goods has given rise to a considerable amount of litigation; and, while there are a few cases to- the contrary, it is fully settled now, by the great weight of authority that such bills of lading, whether in the hands of the original party or of an assignee, do not create any liability against the carrier. The theory of these cases is that the agent of the carrier has no authority to give a bill of lading until the goods are received for transportation, and the party who takes such a bill of lading has full knowledge of the want of authority. — Hutchinson on Carriers (2d Ed.) § 123; Pollard v. Vinton, 105 U. S. 7, 26 L. Ed. 998; Friedlander v. T. & P. R. R. Co., 130 U. S. 416, 9 Sup. Ct. 570, 32 L. Ed. 991. In order, to protect the holders of such bills of lading our statute was passed. — Code 1896, § 4223. And an important question to be decided in this case is whether or not such statute fixes the liability of the carrier in this case. The decisions of the English courts, in regard to the similar act (St. 18 & 19 Yict. c. § 3), are not controlling, as said act provided that such bills were conclusive', “as against the master or person signing the same,” and the decisions that the act does not apply are based upon — 399 — the very technical point that only the person actually signing the bill of lading, to-wit, the master of the aussel and not the OAA’ner, is bound by it. — Blanchard v. Powell, 9 Law Rep. Court of Ex. 74; Jessel v. Bath, 2 Law Rep. Court of Ex. 267; Brown v. P. D. & S. C. Co., 10 Law Rep. Court of C. P. 562. This section of our Code came before our own court in a case in which the agent of the railroad issued a bill of lading to a fictitious firm for goods never received, and indorsed it in the. name of said fictitious firm. While the court held that ordinarily the railroad company would be liable to a bona fide indorsee, by virtue of the statute only, yet in this case, from the fact that the party to Avhom the bill of lading Avas issued was fictitious, the indorsee should have informed himself as to whether there. Avas such a firm, and, failing to do so, could not claim the protection of the net. — Jasper Tr. Co. v. K. C., M. & B. R. R. Co., 99 Ala. 416, 14 South. 546, 42 Am. St. Rep. 75. The court affirms the doctrine of the nonliability of the railroad company Avitliout the aid of the statute, either to the original holder or to the indorsee of the bill, and states that “its Avhole intention Avas to punish and prevent the giving of a bill of lading Avhen the property or thing Avas not in fact received for transportation. * * * It Avas enacted to prevent fraud, sometimes perpetrated through spurious bills of lading. * * * The statute must not be construed as altering the common law, or as making any innovation therein further than the Avords import.” — Jasper Tr. Co. v. K. C., M. & B. R. R. Co., at pages 422, 423 of 90 Ala., pages 548, 549 of 14 South. (12 Am. St. Rep. 75). This vieAv of the statute was also adopted by this court in the case of Thompson v. Ala. Midland R. R. Co., 122 Ala. 378, 24 South. 931. Taking, then, the history of this statute, its clear purpose, so forcibly expressed by Stone, O. J., as Avell as its language, we hold that it provides only for those, cases where the carrier, “not having received things or property for carriage, shall give, or issue a bill of lading, or receipt, as if such things or property had been received,” or giving-duplicates, etc. — 400 — In the case notv before the court the agreement of parties as to the fact shows that there was no issuing of a false bill of lading, and no fraud practiced; that the 50 bales of cotton -were, in fact, received and delivered, but simply did not weigh as much as the bill of lading stated; that the railroad company did not know of the deficiency, and the fraud wms perpetrated by the consignor, from whom the consignee purchased the cotton. In giving this bill of lading the agent of the carrier acted within the scope of his duties; the goods purporting to be what the bill of lading stated were, in fact, received. The statute then does not apply, and we must look to the general principles of the law' in order to determine the liability of the carrier. This interpretation of the statute is in accordance with that placed upon a similar statute by the Supreme Court of New York in the case of Dean v. Driggs (N. Y.) 33 N. E. 326, 19 L. R. A. 303, 309, 33 Am. St. Rep. 721. Counsel for appellee insist that, notwithstanding the general rule in regard to cases where the goods were not delivered at all, yet, where there was, as in this case, a delivery of the goods, but not of the quantity named, the carrier is estopped from controverting the statement of quantity in the bill of lading as to an innocent holder of the bill, and they refer to the able note of Judge Freeman to the case of Chandler v. Sprague, (Mass.) 38 Am. Dec. 409-414. In that note the learned annotator gives some cogent reasons in opposition to the rule in regard to cases where there was no deliverer of the goods, but state's that “the overwhelming wnight of authority, however, is in favor of the doctrine that, even as against a bona fide consignee or indorsee, the shipowner is not estopped by the bill of lading from showing that no goods were shipped, as therein stated.” Note, pages 410, 411. He goes on to cite cases in which it has been held that the same principle (to-wdt, that the ow'ner is not responsible because the agent had no authority to sign for more goods that he received) applies to a case of deficiency, but wn think very properly draw's the distinction to the effect that, when the agent gives a bill of lad — 401 — ing for goods actually received, lie is acting within the scope of his authority — “he has not acted outside of his authority, blit has merely abused it.” And states that, “where the master or agent misrepresents the quantity of the goods,” it seems to be just that he who confers the authority should be responsible.' Page 414. The learned judge also states (on a point which will be taken up presently) that “if a bill of lading contains the clause ‘weight unknown,’ or any clause of similar import, it is clear that the carrier is not held to warrant the weight to be as specified, and that he is not thereby estopped to show, .as against the shipper or any holder of the bill of lading, that the weight was less than that stated, and that all the goods received were delivered.” Page 413. The able annotator also cites the case of Miller v. Hannibal, 24 Hun. (N. Y.) 607, to the effect that where a bill of lading receipted for a certain number of “barrels of eggs,” when, in fact, the barrels contained nothing but sawdust, the carrier was estopped, as against the bona fide indorsee, who had paid for the eggs. Page 412. This case came up for review in the Court of Appeals of New York and was reversed. The bill of lading, in the printed part, stated, “Contents unknown,” and in the written part they were described as “thirty barrels of eggs,” and the court said: “The volume and method of the business of transportation by railroads and transportación lines render it practically impossible in most cases for the carrier to ascertain, by examination, the contents of packages received for carriage, and when he qualifies his receipts, as in this case, we know of no reason whv parties dealing upon bills of lading, so qualified, shall not be held to notice of the qualification.” — Miller v. Hannidal, 90 N. Y. 430, 435, 43 Am. Rep. 179. In the case of Relyea v. New Haven Rolling Mills Co., 42 Conn. 579, the bill of lading was for a certain number of tons of scrap iron, with no qualifying words, and the court, citing Sears v. Wingate, 3 Allen (Mass.) 103. to the effect that the master or owner is responsible “when, the consignee is deceived thereby, provided the statements are those which the master knew, or ought — 402 — to have known, were erroneous, and the incorrectness of which he had the means of discovering,” states that, “it was his duty [that is, ihe master’s] either to have ascertained the true weight, or to have refused to sign a clean bill;” and consequently allowed the holder of the bill to recoup to the amount of freights sued for. In said Sears Case, supra, it was a “clean bill” of lading, and a suit by the carrier for the freight, and the right to recoup for deficiency was denied. The opinion is by Judge Hoar, who cites a number of cases, among them Shepherd v. Naylor, 5 Gray (31 Mass.) 531, to the effect that “if the bill of lading expressed the number of bundles, adding the aggregate number of weight, probably the shipowner would be responsible for the number of bundles, because that is visible and easily ascertained, and may identify the shipment, but the weight would be an immaterial circumstance,” and goes on to state that “the master himself is not answerable for a misstatement in any particular, which, according to the uses of trade, would be regarded as merely an estimate, and not a statement of a fact within his knowledge;” also that if the statement of weight was “erroneously, but not fraudulently, made,” it would Ire open to explanation. See, also, Dean v. Driggs, supra. The strongest case in favor of the contestation of the appellee which has come to our notice is that of Tibbits v. R. I. & P. Ry. Co., 49 Ill. App. 567. In that case the bill of lading had, in the printed part, the words “Contents and value unknown,” and receipted for 38,600 pounds of corn and really contained only 24,264 pounds. The grounds on which the court held the carrier liable were, first, that the words “Contents and value unknown,” evidently intend to refer to packages, while in that case the corn was loaded into the car from the elevator; and, second, as the weight was stated in a column ruled for that purpose, over which was printed, “Subject to correction,” while that would cover ordinary mistakes, it would not cover so large a deficit, where the corn was in bulk, as “such a difference would be apparrent to the — 403 — sight, and it would require no test of weighing to show that it existed.” Even if we were to follow this case to its full extent, and even if the bales of cotton had been visible when delivered to the carrier, the case now before the court is differentiated from it by the facts that the cotton was not in bulk, but in 50 bales, and 50 bales were delivered and we could not say that the difference was such as to be apparent to the sight. On the other hand, the great weight of authority is that while the carrier may bind himself as to the quantity receipted for by express stipulation, and while there may be cases in which the carrier Is liable because of fraud or intentional misstatement, or of such gross overvaluation as to be evidence of fraud, yet in a case like this, where the goods were stated to be 50 bales of cotton and 50 bales were delivered, where the bill of lading contained the saving clause as in this case, the carrier was not responsible for the deficiency in weight. As stated by Lord Mansfield: “If the master qualifies his acknowledgment by the words ‘Contents unknown,’ he acknowledges nothing.” Hutchinson on Carriers (2d Ed.) § 125a; Porter on Bills of Lading, pp. 38, 39, 40, 43; Abbott v. N. S. S. Co., 33 Fed. (D. C.) 895; Law v. Botsford, 26 Fed. (D. C.) 651; St. L., Iron Mountain & S. Ry. v. Knight, 122 U. S. 79, 85, 7 Sup. Co. 1132, 30 L. Ed. 1077; Ray on Negligence of Imposed Duties, p. 105, § 28. The judgment of the court is reversed, and the cause remanded. Tyson, Dowdell, and- Anderson, JJ., concur.