Appellee's counsel seem to be amazed by the holding of the court that the two units of electrical machinery consisting of an electrical generator, the major elements of which consist of quantities of copper wire, and a steam engine equipped with brasses and an electrical switchboard, are not "scrap iron *Page 499 or steel"; that is, "pieces of iron or steel having value for remelting purposes only," and strenuously insist that the jury should be allowed to determine by their verdict that said shipments consisted of only "pieces of iron or steel having value for remelting purposes," and within the classification of the rate schedule under which the shipments were made.
It may be noted that said schedule expressly excepts "copper clad" material.
Though it be conceded that the materials constituting the cargo may have been "junk" or "scraps," neither the ingenuous argument of counsel nor the verdict of the jury could convert this "copper clad," secondhand machinery into "scraps or pieces of iron or steel."
It unmistakably appears from the bill of exceptions that the bills of lading were produced in court by plaintiff's counsel during the examination of its first witness, Campbell, who was called on to identify and did identify said bills of lading. They were then, on cross-examination of the witness, offered in evidence by the defendant.
The bill of exceptions also shows that McKee, who requested that the cars be placed, was not the consignee; that the request was made, not to Witt, the agent of the company who had authority to make the delivery, but to a subordinate in the office of the yardmaster, and the excerpt quoted from witness' (Witt) testimony in the application for rehearing, "They arrived consigned to Mr. McKee — our yardmaster called my office on Monday morning and stated that Mr. McKee had called him and asked him that those cars be placed on the Woodstock Cotton Mills' siding for unloading and wanted to know if it was all right to place them, and I authorized him to place them at that point for unloading," clearly shows that Witt was acting on the assumption that the request for placing the cars was by the consignee, McKee. It was not until Witt inspected the cars after they were so placed that he ascertained the plaintiff's connection with the transaction and made demand on it for the additional freight.
In these circumstances, it is clear that the railroad agent in authorizing the cars to be placed did not intend to deliver the shipments to the plaintiff.
The application is therefore overruled.
ANDERSON, C. J., and THOMAS and KNIGHT, JJ., concur.