November 5, 1923. The opinion of the Court was delivered by The following statement appears in the record:
"This case was tried before Hon. M.S. Whaley and a jury, in September, 1922. The County Judge decided that there was no issue of fact involved, and during the trial of the case, after the evidence was in, dismissed the jury, to render a decision later on the question of law.
"The evidence on the part of the plaintiff consisted of a bill of lading, dated June 15, 1920, from Ft. Valley, Ga., with the consignor, Gibbes Machinery Company, consigned to order of Gibbes Machinery Company, at Wateree, S.C. notify J.S. Collins at the destination. The bill of lading stated further on its face that the articles consisted of a carload of gin machinery, and that the weight of the same, subject to correction, was 20,000 pounds. The bill of lading was standard in form and contained, among other provisions which are immaterial to the case at bar, the following:
"`Section 8. The owner or consignee shall pay the freight and average, if any, and any other lawful charges accruing on said property, and, if required, shall pay the same before delivery. * * * '
"The bill of lading is signed by the agent of the railroad company, and also by the agent of the Gibbes Machinery Company.
"The plaintiff offered J.M. Bates, plaintiff's agent, who testified in substance that when the freight arrived it was delivered to J.S. Collins, the defendant, who was required to pay the amount charged on the bill, to wit, $95.79; that thereafter he received notice that the weight of the shipment was incorrect, and that the additional amount of freight due was $97.25, which he notified Collins of, and which *Page 223 Collins refused to pay. Upon the bill of lading above referred to being introduced in evidence, the defendant's counsel objected, on the ground that Collins, neither being the consignor nor the consignee, could not be bound by the terms and provisions of the bill of lading, and that he, not being a party to the bill of lading, was entitled to rely on the freight bill presented, and was under no obligation to pay the balance. The County Judge overruled this contention and allowed the bill of lading in evidence. On cross-examination Mr. Bates testified that the average load around Wateree for mules was 2,000 pounds to a load; that he would not put as much as 4,000 pounds on any pair of mules that he had.
"The plaintiff called W.M. Callahan, who swore that he weighed the carload of machinery in question, and that the net weight of the same was 40,300 pounds. It was admitted that the correct rate was 46 1/2 cents per 100 pounds, and that the amount sued for represented the difference between the amount claimed and the amount paid. At the conclusion of the testimony a motion for directed verdict was made.
"By Mr. Graydon: Your Honor, we make a motion for a nonsuit on the ground that the consignee of this bill of goods — that the contract of carrying was between the Gibbes Machinery Company and the railroad, and not between Collins and the railroad, and any overcharge would have to be made against the Gibbes machinery Company, for Collins is not a party to it, and if there had been an undercharge Gibbes Machinery Company would have had to sue for it, and the fact that it is an order notify shipment does not affect it, because the contract of carrying is between the Gibbes Machinery Company and the railroad, and the only right Collins had was to go there and get the shipment when the bill of lading was sent to him by the Gibbes Machinery Company. *Page 224
"The Court: This shipment started out, consigned to Gibbes Machinery Company, and in the meantime Collins had an arrangement with Gibbes Machinery Company —
"Mr. Lumpkin: Gibbes Machinery Company ordered this delivered to Collins.
"The Court: Now, about this mistake of freight — would Collins be considered to know that he would have to pay the freight? Mr. Lumpkin, your position is that Collins did not agree on any amount of freight and that once the weight was established, he would be bound by it under the Interstate Commerce Act?
"Mr. Lump kin: Yes, sir.
"The Court: I will hear your testimony, Mr. Graydon.
"The defendant testified that he went to the office of the railroad at Wateree, and got the machinery in question, and hauled it in nine loads with the wagon; that it would not have been possible to haul 40,000 pounds in ten loads; that the machinery was now up in the ginhouse, and was put up before he was notified of the excess freight, and that he could not weigh it without more costs than the freight, but that, from the hauling of it and from estimating the weight on the floor, he was positive that the machinery did not weigh more than 20,000 or 25,000 pounds.
"Here the defendant and the plaintiff moved for a directed verdict, and the Court decided that there was no issue for the jury."
Thereafter, his Honor, the County Judge, filed an order, which will be reported.
The first exception is as follows:
"That his Honor, the County Judge, erred in refusing to submit to the jury the question as to how much the machinery weighed, it being respectfully submitted that there was ample evidence to go to the jury as to this fact, and that his Honor, the Judge, erred in refusing to allow it to be determined by the jury." *Page 225
The provision in the bill of lading, that the weight therein specified was subject to correction, gave the plaintiff the right to bring an action to correct the mistake; but it also gave the consignee a similar right. Therefore, when the plaintiff undertook, upon the trial of the case, to prove that there was a mistake in the weight of the machinery, the defendant had the right to prove the correct weight. The rights of the parties in this respect were mutual. A contrary ruling would have the effect of depriving the consignee of his property without due process of law, and of an equal protection under the law. There was error, therefore, in the refusal to submit the issues of fact to the jury, and this exception is sustained.
The next exception is as follows:
"That his Honor, the County Judge, erred in holding that the defendant was liable for the excess freight, it being respectfully submitted that the defendant was not a party to the contract, and was only liable to pay such freight as was demanded of him, and any excess of that amount should have been paid by the consignor or the consignee, they being one and the same person in this instance."
The case of Brown v. Railroad Co., 91 S.C. 377;74 S.E., 754, cited in the order of his Honor, the County Judge, shows that this exception cannot be sustained, but is overruled.
Remanded for a new trial.