February 19, 1919. The opinion of the Court was delivered by This is an action to recover the value of three carloads of lumber delivered to the defendants railroad companies, which were sold by the appellant to pay freight and demur rage charges.
There are several exceptions raising interesting questions of interstate commerce law, yet, in the view the majority of this Court takes in regard to this case, they are unnecessary to a decision, and need not be considered.
At the close of the testimony the appellant moved for a direction of a verdict in its favor, on the plaintiff's cause of action, but did not include the counterclaim. A short statement of the facts will show that the motion should have been granted. *Page 477
On the 13th of May, 1916, the plaintiff shipped three carloads of lumber to Bay Lumber Company, Norfolk, Va. He delivered the cars to the Northwestern Railroad Company at Bloomville, S.C. and the Northwestern delivered the cars to the Atlantic Coast Line at Sumter. The cars went forward promptly to Norfolk. A few days later the plaintiff notified the Northwestern to divert the cars to Barker Bond Lumber Company, of Brooklyn, N.Y., "who would furnish directions."
The record contains a letter from the Barker Bond Lumber Company that reads as follows:
Exhibit D — Telegram: "New York 5:30 p. m., 36; F.C. Thomas, Manning, S.C. We gave forwarding orders on three cars two by ten May thirty-first to NYP N agt, Norfolk. If cars still on hand Southern Road you should order forward as we assume you had ordered cars to us NYPN delivery. You better order forward Flatbush Station, Brooklyn to avoid further delay. Baker Bond Lbr. Co. 7 p. m."
There is nothing in the record to show that the Atlantic Coast Line ever received these instructions. Up to the 29th of June there was no evidence in the record to show that the Northwestern had received any shipping instructions, and when they were received it was accompanied with notice that no demur rage charges would be paid after May 31st. The Coast Line held the cars until some time in the fall of the year, when they were sold for demur rage and freight charges. The plaintiff complains that he was not notified that the cars were being held and he thought they had been delivered. Practically the plaintiff ordered the Coast Line to hold the lumber for instructions. The plaintiff appointed the new consignee his agent to furnish the shipping instructions. The default was the default of the plaintiff through his agent for that purpose, and not the default of either defendant. *Page 478
It needs no citation of authority to show that the Coast Line could not have remitted any of the freight or demur rage charges without incurring the penalty for discrimination.
The verdict should have been directed, and the judgment is reversed.
MESSRS. JUSTICES HYDRICK and GAGE concur.