Atchison v. Bradley

Anderson, J., delivered the opinion of the court. Appellee, B. C. Bradley filed his bill in the chancery court of Forrest county, against; appellant, ■ Atchison, Topeka & Santa F'é Bailway Company, to recover the sum of two hundred eighty-one dollars and twenty-six cents alleged to be due him by the appellant, growing out of a breach of contract between the parties, by appellant. The proceeding is an attachment in chancery on the ground of the nonresidence of appellant. The ease was tried on hill, answer and proofs and a decree was rendered in favor of appellee for the amount sued for with interest and costs, from which decree appellant appeals to this court. There is no dispute whatever as to the facts of the case. Therefore there was no issue of fact for the chancellor to try. There were only issues of law. The controlling facts' of the case are as follows: Appellant was one of the extensive railroad systems of this country. Its construction and upkeep work necessitated the purchase by it of large quantities of railroad cross-ties. The Standard Tie &■ Lumber .Company of ■Meridian in this state was engaged in the cross-tie business. It bought ties from various persons, firms, and corporations engaged in the cross-tie business in South Mississippi and elsewhere. The ties were sold in turn to different railroad companies in this country. In January, 1921, appellant purchased from the Standard Tie & Lumber Company, fifty thousand railroad cross-ties at prices named f. o. b. cars at producing points, the contract [473] providing for inspection by appellant’s inspector at such loading points. This contract was carried out according to its terms. The Standard Tie & Lumber Company delivered to the appellant who accepted same, the fifty thousand ties contracted for. Appellee Bradley came into the transaction in this manner: The Standard Tie & Lumber Company, in order to fill its contract with appellant, went among various persons and concerns in South Mississippi, and perhaps elsewhere, engaged in the railroad cross-tie business, and in turn purchased from them (one of whom was W. A. Bilbo) a sufficient number of ties for said purpose. These contracts provided for the delivery of the ties purchased within the time fixed for the delivery of the fifty thousand ties purchased by appellant from the Standard Tie &• Lumber .Company. The contract between the Standard Tie & Lumber Company and W. A. Bilbo was in writing. By its terms, three thousand five hundred of the ties were purchased by the Standard Tie & Lumber Company from W. A. Bilbo, the contract providing for inspection and acceptance by the appellant before loading. W. A. Bilbo in turn, in order to carry out' his contract with the Standard Tie & Lumber Company, purchased from appellee, R. C. Bradley, two thousand of the ties which he (Bilbo) had agreed to sell and deliver to the Standard Tie & Lumber Company. The contract between Bilbo and appellee was in writing, and among other things provided that appellant’s inspection, and acceptance should govern. Appellee got out and delivered, according to his contract with Bilbo, a part of the ties which he had sold Bilbo. When Ins ties were ready for shipment he notified Bilbo and knew no one else in the transaction. Bilbo in, turn notified the Standard Tie &■ Lumber Company that the ties were ready for shipment, and in turn the Standard Tie & Lumber Company notified appellant, who sent its inspector to inspect and accept or reject the ties. [474] Appellee -got out and had ready for shipment a lot of ties which appellant’s inspector rejected but which appellee proved came up to the requirements of his contract with Bilbo (the contract being in writing) at the time the former requested of the latter that the inspection be made, but on account of an unreasonable delay of inspection the ties deteriorated in value in the amount sued for. The evidence shows without any conflict whatever, that appellee Bradley .knew no one in the making or carrying out of his contract with Bilbo, except the latter ; that he was under obligation to no one in reference to the matter, except Bilbo, and looked upon no one as obligated to him except Bilbo. And the same was true of the parties thereto with reference to the making and the execution of the contract for the three thousand five hundred ties between Bilbo and the Standard Tie & Lumber Company. And it was likewise true of the parties in the making and execution of the contract for the purchase and sale of the fifty thousand ties between the Standard Tie & Lumber Company and the appellant. In other words, no one from appellee up to the Standard Tie & Lumber Company, had any agreement whatever with reference to filling the tie contract between the Standard Tie & Lumber Company and appellant, except the latter two parties. It is true that all ties by whomsoever furnished to fill said contract, had to be inspected by appellant’s inspector. Tt is, nevertheless, plainly shown by the contracts involved, as well as by the evidence, that appellant had no contractual relations whatever touching these ties except with the Standard Tie & Lumber -Company. Appellant’s position is that, in view of the fact that it had no contractual relations with appellee, it therefore neither owed the other any duty or obligation contractual or otherwise. Hence, there could be no breach of duty or obligation on the part of appellant and liability following the same. 0>n the other hand, appellee contends that, looking at the whole transaction, what took place amounted simply to an as [475] sigiiment to W, A. Bilbo by the Standard Tie & Lumber Company of a part of its contract with appellant, and in turn as assignment by W. A. Bilbo to appellee of a part of the former’s contract with the Standard Tie & Lumber Company. And that thereby appellant was under the same obligation to these assignees of parts of the original contract as it was to the Standard Tie & Lumber Company. And appellee cites authorities to show that a chose in action is assignable, which, of course, is generally true. But appellee especially relies on Ross v. Morrimac Veneer Co., 129 Miss. 693, 92 So. 823, as conclusive in favor of his right to recover. We do not understand that case as sustaining appellee’s contention. That case involved a contract to furnish one million five hundred thousand logs at a specified price, within a given time. The court‘held that such a contract was not personal or so peculiarly individual as to be unassignable; that the assignment of a part interest in such á contract was effectual where agreed to and accepted by the purchaser of the logs by means of telephone communications and letters, as well as the actual acceptance of and payment for numerous cars of such logs delivered to the purchaser by the assignee. There is no pretense of a formal assignment in the present case from the Standard Tie & Lumber Company to Bilbo or from the latter to appellee. Appellee’s position is that the contract as understood and performed was tantamount to such assignments. We are of the opinion that the evidence does not tend even to make such a case. The nearest approach,to it (and that is wholly insufficient as tending to establish the existence of such assignments) is that appellant’s inspector inspected and accepted or rejected, all ties ready for shipment by whomsoever gotten out, when requested so to do by the ►Standard Tie & Lumber Company. We simply hold that this is a case where the evidence shows without dispute that appellant was under no obli [476] gation to appellee by contract or otherwise, and therefore could be guilty of no breach of duty. Reversed, and judgment here for appellant.