Prescott & Northwestern Railway Co. v. Davis

Kirby, J., (after statifig the facts). The facts of this case are virtually undisputed. The cars of berries were started from Prescott on the night of the 8th of May, no bills of lading being issued therefor until the afternoon of the 9th, when it was known to appellant and the shipper that the cars had already passed Little Rock, the diversion point, and the shipper signed the bills of lading as written. Appellee knew the cars had been billed from Prescott to Kansas City on the 8th; did not see the bill of lading until the 10th when he paid for the berries, and when he received the bills and inquired of the shipper as to the location of the cars he was advised they had gone straight on through Little Rock. (1) The bills of lading were negotiable and were transferred and delivered to appellee upon his payment of value therefor and he thereby became the owner of the shipment. Martin v. Railway Company, 55 Ark. 525. (2) Such bills insofar as they are receipts may be explained or contradicted but as contracts for carriage of property, they are to be construed according to their terms. Western A. & R. Co. v. Ohio Valley Bkg. & Tr. Co. (Ga.), 33 S. E. 821; Little Rock & etc. Rd. Co. v. Hall, 32 Ark. 669; Cleveland, C. C. & St. Louis L. R. Ry. v. Moline Plow Co., 41 N. E. 480; Merchants Dispatch Transp. Co. v. Furthmann, 36 N. E. 624. (3) The carrier knew when the bills of lading were issued that they were negotiable and could be used to obtain advances on the shipment by attaching drafts thereto and discounting them with some bank, which would forward for delivery upon payment of such draft. These bills contain,no thing that would put the purchaser on notice that the shipment would not take the usual route as designated therein, the notation' made thereon by the carrier’s agent indicating that notwithstanding the shipment had been originally made to Kansas City, it had been diverted therefrom, and the purchaser understood that such was the case and had the right to rely upon the terms of the written contract of carriage or bill of lading, in making his purchase. Western & A. R. Co. v. Ohio Valley Bkg. & Tr. Co., supra. (4) It w‘ll be presumed that any oral negotiations respecting the terms or conditions upon which the goods are to be received, the route and rate at which they are to be forwarded, are merged in the. bill of lading. 4 Elliott on Railroads, § 1423; St. L., I. M. & S. Ry. Co. v. Jones, 93 Ark. 545. The evidence is undisputed as to the damage and no clause of the bill of lading providing for a different rule of computation was set up at the trial, nor urged as an objection to the measure of damages as assessed. There was no testimony showing the rate charged for the transportation of the shipment nor that the shipper had any other option than to ship under the terms of the contract as made, and at the rate charged. We do not therefore see that any question can now be made that the damages were erroneously assessed upon a different basis than provided for in the contract of carriage of an interstate shipment. St. L., I. M. & Sou. Ry. Co. v. Cumbie, 101 Ark. 179; K. C. P. & G. Rd. Co. v. Pace, 69 Ark. 256. The judgment is accordingly affirmed.