Alabama & Vicksburg Railway Co. v. Pounder

Truly, J., delivered the opinion of the court. This case was tried in the court below before the judge, a jury being waived. So far as material to the decision of this litigation, the facts are as follows: On August 8, 1901, Mitchell & Co., who were the sales and distributing agents of the appellees, Pounder, effected a sale of a quantity of cotton ties at $1.18 per bundle. The appellees ordered these shipped, and accordingly 1,000 bundles of ties were shipped from Charlotte, N. C., on the 19th of August, 1901, and delivered to the Seaboard Air Line car No. 11,155, and consigned to J. M. & C. B. Pounder, at Jackson, Miss., to shippers’ order, draft and bill of lading attached, sent to one of the banks in Jackson, to be taken out on receipt of goods by Mitchell & Co. Car No. 11,155 was damaged in transit, and on the 23d of August, 1901, the Mobile & Ohio Railroad Company, at Montgomery, Ala., refused to accept that car, and thereupon the ties were reloaded into Seaboard Air Line ear No. 16,071, but the Mobile & Ohio Railroad Company accepted this car under the original waybill. When, car No. 16,071 reached Meridian, the Alabama & Vicksburg Railway Company, appellant, refused to accept [575] the car under the defective waybill, and demanded that it should be corrected. This was done, and the ear No. 16,071 reached Jackson on the 31st of August, 1901, the same day that it was received by the appellant company at Meridian. According to the well-established and undisputed custom of the railroad company, and in its usual course of business, which requires the consignee to be notified of the receipt of freight, the railroad agent notified J. M. & C. B. Pounder by postal card, through the mail, but did not notify Mitchell & Oo., who were known to the railway company to be the agents and representatives of appellees. On each day from September 1st to September 6th Mitchell asked, in person, at the depot of appellant, whether car No. 11,155, loaded with cotton ties for Pounder, had been, received. The answer in each case was that it had not, Mitchell also testifies that he asked the agent of the company if there were any other ties for Pounder, and received the same reply. The proof showed further that the sale of the ties had been effected to various parties by Mitchell & Oo. at the figure named heretofore, to wit, $1.18 per bundle, but that, on account of the delay in the shipment, the price of ties had declined to such an extent that Mitchell’s vendees refused to accept. It further appears that, if the ties had been received by Mitchell on or prior to September 5th, he could have disposed of the ties at the figures named. Upon the trial it developed that when Mitchell by his own examination of the cars upon the track, found the car No. 16,071, he immediately made an investigation, which resulted in a few hours in ascertaining the cause of the mistake, but this discovery was made too late to carry out the sale as originally made. One of the members of the firm of Pounder came to Jackson shortly thereafter and succeeded in disposing of the ties, through Mitchell & Oo., at 92 1-2 cents per bundle. A judgment was given for $250 for plaintiffs, this being the difference between $1.18, the original price agreed upon, and 92 1-2 cents, the price which Pounder was able to obtain in the [576] open market, all other claims for damages being disallowed. On the trial before the-judge, all the facts were thoroughly investigated, and were decided by him adversely to the'railway company. On appeal, three points are urged as error: First. It is contended that the demurrer to the declaration should have been sustained, because of the failure to state the facts upon which the negligence of the railroad company is based. We think that the demurrer was not well taken, aud was therefore properly overruled. It is not necessary that the declaration should detail the evidence by which the plaintiff expects to make out his case. The declaration avers an unreasonable and long delay in the shipment of the ties, and that this was negligence in the railroad company, and that damages to plaintiffs resulted therefrom. We think this charge, together with other facts set out in the declaration, sufficient in the case at bar. Second. It is urged that the delay complained of was not in the shipment, but after the freight arrived at its destination, and therefore, under this declaration, the railroad company is not liable. It is true that, in point of fact, the delay occurred at the depot in Jackson after the car had arrived here, but we prefer to align ourselves with those authorities which hold that the duty of the carrier is not completed until consignee has been notified of the arrival of the freight. More especially is this the rule where, as in this case, a universal and well-understood custom to that effect is in force. Upon that branch of the case the case of New Orleans, J. & G. N. R. Co. v. Tyson, 46 Miss., 729, is decisive. It is contended by counsel for appellant that, even recognizing this rule, still it was complied with in this case by the notification which was sent by mail to Pounder. We think not. The fact that Mitchell, who was known to be the agent of Pounder, daily asked for cars of ties consigned to Pounder, was sufficient to put the railway company on notice, and it was negligence in its agents not to have notified him that [577] a ear of ties was there, consigned to Pounder. The appellant cannot shield itself with the argument that there was a difference in the number of the car for which Mitchell asked and the car which had been actually received in Jackson. The ties were the material thing that Mitchell was inquiring about. The car was simply the vehicle in which they were expected to arrive. Especially was it negligence in the railroad company not to inform Mitchell that the car had arrived, because the company had actual knowledge, through its agent at Meridian, that this was the same shipment of ties that had .originally been shipped in car No. 11,155, and the railroad company had actual knowledge of the change of cars containing the shipment, because the waybill had been corrected, at its demand, to show the change. Undoubtedly, therefore, it was negligence of the railroad company which produced any loss entailed upon Pounder. The third proposition which is contended for by counsel for appellant is, that the declaration avers that the sale was made by Pounder to Mitchell, while the proof upon the trial showed —so they contend — that the sale was made not to Mitchell, but' by and through Mitchell & Co., as the sales agents and representatives of Pounder. Granted that this is so; how can it affect the liability of the railroad company? The point at issue is not to whom the sale was made, but were Pounder & Co. damaged by the negligence of the appellant ? If it be granted that there was a variance between the allegation in the declaration and the proof upon the trial, the railway company had its remedy at that time to plead variance; and, if it appeared that it had been misled in any wise, it is not to be doubted that the plaintiffs would have been allowed to have amended their declaration upon proper terms. Code 1892, § 718. But the record shows that the appellant was not misled. The case was fought out upon its merits. The point of a variance cannot now be raised for the first time. Greer v. Bush, 57 Miss., 576. The judge [578] found the facts against the appellant, and we find no error in law. The judgment is affirmed.