So. Ry. Co. v. Brewster

MAYFIELD, J. — The only count in the complaint is as follows: “The plaintiff, Mike Brewster, claims of the defendant, Southern Railway Company, a corporation, the sum of $81.56 damages for the failure to deliver- certain goods, viz., one bale of cotton, marked ‘No. 777.’ received by the defendant as a common carrier, to be delivered to Knight, Yancey & Co., at Decatur, Ala., for a reward, and which defendant failed to deliver. Said claim is the property of plaintiff.” The last sentence was added by amendment. The complaint was also amended, over the objection of the defendant, as follows: “By inserting therein after the word ‘Plaintiff,’ the words, ‘J. F. Gullatt, suing for the use of” — and by adding: “The said-Mike Brewster is now the beneficial owner of said cláim here sued upon.” • (1) It is certain that the action is on a bill of lading; that is, on a contract of shipment. The only breach [49] alleged is the failure to deliver one bale of cotton, No. 777. The action is not on the common counts, but is in special assumpsit, on a bill of lading. There is no attempt to waive a tort and sue for money had and received. (2, 3) The plaintiff, as it fully and indisputably appears, was not a party to this contract sued on. The contract was between one J. F. Gullatt and defendant, and the former is alleged to have assigned the claim or cause of action to the plaintiff, but whether before or after suit brought does not appear. Nor is this material, in the view we take of the case. If any cause of action accrued as for the failure to deliver this bale of cotton, it accrued to J. F. Gullatt or to the consignees. It appears without dispute that the consignees of the bale of cotton were purchasers thereof from the consignor. The defendant demurred to the complaint, and objected to the allowance of the amendments, and, this question being decided against it, it filed several special pleas, among which was plea 4, reading as follows: “Fourth. That the cause o,f action in this case is in Knight, Yancey & Co., and not in plaintiff, and that there had not been, at the time suit was commenced, a transfer of the right of action to the complainant.” After a careful examination of this record, we have reached the conclusion that the plaintiff cannot recover in this action. The action, as before stated, is on a bill of lading, that is, on a particular contract of shipment. The only breach alleged is failure to deliver one bale of cotton, No. 777, to the consignees named, Knight, Yancey & Co. Conceding that this right of action is assignable, and that it has been assigned, it conclusively appears that it was not assigned to the [50] plaintiff, either before, or after, the action was brought. It conclusively appears that Knight, Yancey & Co., the consignees and purchasers of the shipment of cotton evidenced by the bill of lading sued on, paid the consignor for the cótton, including this particular bale, as if it had all been deliveredj though the shipment was in fact short one bale, No. 777. Whether the right of action on this bill of lading, as for the breach alleged, was originally in Knight, Yancey & Co., or in the consignor, J. F. Gullatt, the right of action certainly passed to the consignees when they paid the consignor for the bale as if it had been delivered. This settled with the consignor in full, and certainly passed to the consignees all. the right, title, and interest in the consignor to the cotton itself, and all claims which the consignor had against the earlier for any failure to deliver. Therefore, when the consignor attempted to assign to plaintiff his interest in the cotton in question or in the bill of lading, no title or interest passed, because the consignor then had no interest or title. He had theretofore passed all his title, interest, and claim to the assignees, Knight, Yancey & Co. The plaintiff attempts to avoid this effect by claiming that Knight, Yancey & Co., by mistake, had settled with Gullatt as for the loss of plaintiffs bale of cotton, and not as for the loss of Gullatfs bale, which is the subject of this suit, and that Gullatt thereafter assigned his right of action as to this bale to the plaintiff. The answer to this contention is that the plaintiff and Gullatt could not, by any such contract between themselves, bind Knight, Yancey & Co., or this defendant. Confessedly Gullatt had no right to settle with Knight, Yancey & Co., as for. the loss of plaintiff’s cotton. They could .not bind the railroad by any such settlement, though [51] they could and did bind the railroad as to G-ullatt’s cotton. The contract of shipment on which the action is brought so contemplates. Any right of action against the railroad company as for the loss of bale No. 777 was, under all the evidence in this case, in the consignees, after the consignor was paid for it by the consignees. Nothing remained thereafter in the consignor to assign. It is therefore made certain by this record, that whatever right of action there ever was, or exists now, against this defendant, on the bill of lading in question, as for the failure to deliver bale of cotton No. 777, it was or is in Knight, Yancey & Co., and not in the plaintiff. Plea 4 was thereupon proven without dispute, and the defendant was entitled to the affirmative charge as requested. Reversed and remanded. Anderson, C. J., and Somerville and Thomas, JJ., concur.