This was a suit in conversion brought by the plaintiff against the defendant to recover the value of 400 pairs of shoes. The court gave the general affirmative charge for the plaintiff.
It appears that the plaintiff on the 28th day of May, 1912, consigned at Mobile a shipment of shoes to J. E. French Co., at Rockland, Mass. At Mobile the shipment was delivered to the Louisville Nashville Railroad Company. At Montgomery these shoes were delivered to the Central of Georgia Railway Company, which in turn delivered them to the defendant at Savannah, Ga., on June 5, 1912. When delivered to the Louisville Nashville Railroad Company at Mobile, the goods were in good shipping condition, but when they were delivered to the defendant at Savannah they were not in good shipping condition. In the condition in which they were received these shoes were transported from Savannah to Boston by the defendant, and at Boston were tendered to the New York, New Haven Hartford Railroad Company, to be delivered to the consignee at Rockland, about 20 miles away. The N.Y., N.H. H. R. R. Co. declined to receive this shipment because the cartons were neither sealed nor corded. These goods were returned to the wharf of the defendant at Boston.
On June 20, 1912, the defendant addressed a letter to the consignees, informing the consignees that it had these goods in its possession at Boston, that the N.Y., N.H. H. R. *Page 595 R. Co. would not accept them for transportation, and requesting that the consignees have some express company call and receive these goods.
On October 2, 1912, an agent of the consignees called at defendant's place, and there left the notice of June 20, 1912, upon which was written the following: "As consignee of these goods, we decline to accept the same. So far as we are concerned, you may place in public storage for account, and at risk of the owner."
On October 5, 1912, the defendant notified in writing the Central of Georgia Railway Company, from whom it received these shoes, that the N.Y., N.H. H. R. R. Co. had declined to receive them, that the consignee also had declined to receive them, and that they would be placed in public storage in Boston.
On October 7, 1912, the defendant had these shoes taken to and stored at the warehouse of the Quincy Market Cold Storage Warehouse Company in Boston "for account and risk of the owners." The Quincy Market Cold Storage Warehouse Company, after notifying J. E. French Co. that these goods would be sold for the amount of charges then due at public auction on May 24, 1913, proceeded to, and did, sell them on that day.
Early in January, 1913, the plaintiff first learned that these shoes had not reached their destination. On February 24, 1913, the plaintiff learned that the goods had been refused by the N.Y., N.H. H. R. R. Co., and on March 5, 1913, through an agent of the Louisville Nashville Railroad Company at Mobile, the plaintiff was informed that these goods had been refused by the consignee and were at that time in "public storage at risk and expense of owner."
It is admitted that these goods were tendered to the N.Y., N.H. H. R. R. Co. in the condition in which they were received by defendant at Savannah, Ga., and that the defendant at the time of receiving them had no knowledge that they would be rejected by the N.Y., N.H. H. R. R. Co. Up to this point, therefore, the defendant discharged all of the duties of a common carrier that the law imposed upon it. This fact furnished defendant with the right and opportunity, by pursuing a proper legal course, of relieving itself as to this shipment of the relation of common carrier. The defendant had the right to store the goods in a suitable warehouse of a responsible party, at the risk of the owner.
After doing all this, the law imposed upon the defendant the duty of notifying the owner of the shipment of the fact and place of storage. Notice was given the consignee, J. E. French Co., who informed the defendant in substance that they would not accept the goods, would have nothing to do with them, and, inferentially, that they did not own them. From this the defendant knew, or ought to have known, that the notice had not been given to the proper party, and that the proper party to notify under the circumstances was the consignor, at Mobile. The consignor at Mobile never received any notice from the defendant or anybody else that these goods had been stored in the warehouse of the Quincy Market Cold Storage Warehouse Company in Boston at the risk and expense of this plaintiff. On March 5, 1913, plaintiff was informed, not by defendant, but by an agent of the L. N. R. R. Co. at Mobile that these goods were "in public storage at risk and expense of the owner." This notice was clearly insufficient, and we therefore hold that the defendant failed to discharge this important duty that it owed the plaintiff. The Quincy Market Cold Storage Warehouse Company never became the agent, under the circumstances, of this plaintiff.
The conduct of the appellant with reference to this shipment became unlawful, and its dominion and acts over the property of plaintiff amounted to a conversion. L. N. v. Brewer, 183 Ala. 177,62 So. 698; North Penn. R. R. Co. v. Commercial Bank,123 U.S. 734, 8 Sup. Ct. 266, 31 L.Ed. 287; Buston v. Penn. R. R. Co., 119 Fed. 808, 56 C.C.A. 320; L. N. R. R. Co. v. Duncan, 137 Ala. 455, 34 So. 988; Carrizzo v. N.Y., S. W. R. Co., 66 Misc. Rep. 243, 123 N.Y. Supp. 179; Morris v. Burrows (Tex.Civ.App.) 180 S.W. 1108.
The assignments of error based upon the introduction of testimony relating to the value of the shoes are in our opinion without merit. It was competent to prove the value of the shoes at Mobile on the date of their shipment in May, 1912, and that their value was the same at Boston as at Mobile. While it is true that the evidence showed that, when the shoes reached Savannah, Ga., one of the 17 cases in which they were packed was broken open, and contained only 20 pairs of shoes and 4 empty cartons, yet this fact did not necessarily overcome plaintiff's statement that in the 17 cases there were 400 pairs of shoes. There was no evidence that the value of the shoes was different on the day of the shipment at Mobile from their value at the time of their conversion at Boston.
The court committed no error in the rulings upon the evidence in this case. The judgment is affirmed.
Affirmed.