Counts 1 and 2 sought recovery of damages for failure to deliver 2,000 cross-ties received by defendant as a common carrier, to be delivered to the plaintiff at Gunter's Landing on the Tennessee river for reward. There was no proof to support these counts, and no insistence seems to have been made upon them in the court below, although the affirmative charge was not asked as to these counts separately. For the purposes of this appeal they may therefore be laid out of view.
As we construe counts 3, 4, and 5, they seek recovery as for breach of a special contract entered into by the defendant company with the plaintiff to transport, by its steamboats and barges, cross-ties placed by the plaintiff at the customary landing and stopping place on the Tennessee river to Gunter's Landing, also on said river. These counts, after alleging notice to the defendant's agents or servants that the cross-ties were so placed, allege such agents thereupon agreed with the plaintiff to take up and load the cross-ties so placed upon said steamboats and barges, and to transport the same to Gunter's Landing on the Tennessee river for an agreed compensation, and that the defendant negligently failed and refused to take up and transport said cross-ties and negligently permitted them to be washed away by flood.
There were specific grounds of demurrer addressed to these counts pointing out that the contract is alleged to have been made with the agents of the defendant and fails to aver that the agents mentioned had any authority in the premises. As previously stated, we construe these counts as seeking recovery upon a breach of a special contract, and not upon a breach of the common-law or statutory duty of the defendant as a common carrier. The demurrer was well taken, and should have been sustained. Cooper v. Slaughter, 175 Ala. 211, 57 So. 477; Addington v. Am. Casting Co., 186 Ala. 92, 64 So. 614. However, as the cause must be reversed for reasons hereinafter stated, it is unnecessary to determine whether this error, under the facts presented, would necessitate such a result.
The evidence for the plaintiff tended to show an agreement on the part of Whittaker, the captain of the boat, absolutely and unconditionally to transport these ties; while the evidence for the defendant was to the effect (Whittaker himself testifying) that there was no such absolute agreement, but it was only agreed to do so whenever a barge could be secured for that purpose, and that for various reasons the barges could not be secured to transport all of plaintiff's cross-ties before the flood.
Charges 2 and 4, refused to the defendant, hypothesize this theory of its case, and we are of the opinion they should have been given, and their refusal is reversible error. The substance of these charges was not touched upon in any given charge, nor in the oral charge of the court. Indeed, the oral charge of the court seems to have proceeded upon the theory that these counts sought recovery for a breach of the common-law or statutory duty owing to the plaintiff rather than for a violation of a special contract, and, also, plaintiff's counsel seem to so insist upon this appeal. But, as stated above, we construe the counts differently. So construing these counts, therefore, it is clear that the defendant was entitled to these instructions.
Other errors assigned seem to be upon rulings largely based upon the theory that the plaintiff seeks recovery for a breach of the common-law or statutory duty, and need not be here separately treated.
For the error indicated, the judgment is reversed and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and SAYRE and BROWN, JJ., concur.