Montgomery & Eufaula Railway Co. v. Kolb

STONE, J.

— When the law has declared certain express rules for the government of men, or when persons enter into express stipulations, expressing the terms on which they enter into contracts, it is a reasonable rule, subject only to a few exceptions, that neither custom nor usage will be allowefi to dispense with.such legal requirements, nor such express stipulations. — Barlow v. Lambert, 28 Ala. 704. “Where by local custom or usage provincialisms and technicalities of science and commerce, and perhaps some others, have acquired a known, fixed and definite meaning, different from their ordinary import; or where such technicalities, unexplained, are susceptible of two or more plain and reasonable constructions, it is certainly competent to prove the existence of such custom, as a means of- showing the sense in which the contracting parties intended to be understood.” — lb. See also the many authorities referred to on the briefs of counsel. Speaking of usage of trade, Mr. Greenleaf, Ev., vol. 2, § 251, says: “It is sufficient if it be established, known, certain, uniform, reasonable, and not contrary to law. . . Their true office is to interpret the otherwise indeterminate intentions of parties, and to ascertain the nature and extent of their contracts, arising not from express stipulation, but from mere implications and presumptions, and acts of a doubtful and equivocal character; and to fix and explain the meaning of words and expressions of doubtful or various senses. On this principle, the usage or habit of trade or conduct of an individual, which is known to the person who deals with him, may be given in evidence to prove what was the contract between them.” This latter principle may be illustrated by a familiar incident in every-day life. A customer is in the habit of dealing with his merchant, and having his purchases sent home, and his bills run from one to two months, before payment is demanded or expected; and this, too, at cash rates. lie selects a given article of merchandise, and orders a given number of yards to be measured off. In this there is not a word said about price, about delivery, or about the time of payment. Yet, there is implied in these few simple and indeterminate words and acts, that'the goods are sold at their customary cash market value, that they will be delivered at the purchaser’s residence without undue delay, and that payment will not be expected, until the end of the customary indulgence. So, in Boon v. Steamboat Belfast, 40 Ala. 184, quoting from Judge Story, this court said : “ The true and appropriate office of a usage or custom is, to interpret the otherwise indeterminate intentions of parties, and to ascertain the nature and extent of their contracts, arising not from express stipulations, but from mere implications and presumptions, and acts of a doubtful or equivocal character.”

In September, 1877, Eaoul,' superintendent of the South Western Eailroad Co. of Georgia — which company was also operating the appellant railroad company — issued a circular, headed “Notice to cotton shippers and instructions to agents.” This notice or circular was again issued at the opening of the season of 1880-1881, and was forwarded to, and received by the agent at Eufaula, and a copy was furnished to the appellees, Kolb & Hardaway. KoU) & Hardaway were cotton buyers at Eufaula, did a considerable business, and made many shipments of cotton by the appellant railroad co'mpany. This suit was brought to recover the value of nine bales of cotton, alleged to have been delivered to the railroad company at Eufaula, to be transported to, and delivered at Montgomery, and never delivered: The case turned on the question of delivery to the railroad company at Eufaula; for it is not pretended the railroad company forwarded the cotton, or'delivered it at Montgomery. In fact, neither the railroad company nor its agent at Eufaula gave any receipt for the cotton alleged to have been lost. There was no express contract fixing the terms. .

We have carefully examined the circular, made apart of the bill of exceptions, and we thinli its regulations and directions are reasonable. They are alike beneficial to the shipper and carrier. They commend themselves by their wise and systematic provisions, intended to secure prompt shipment, to prevent confusion of goods, and to render disputes about delivery for shipment almost impossible.

It is not pretended that those regulations were conformed to in this case. The claim is, that the railroad company departed from its own regulations, and thus established a usage different from them, which was conformed to in this case. The bill of exceptions recites that, “ the evidence further tended to show that shortly after the printed ‘notice to cotton shippers and instructions to agents5 were issued, they were disregarded by both shippers and defendant’s agent at Eufaula, and'that it became a general custom and usage to deliver and receive cotton at the depot in Eufaula, in disregard of such printed notice and instructions. The'evidence on this subject was very conflicting, the agent himself testifying that he never received cotton for shipment in non-compliance with said instructions, except in a few instances made necessary by what he thought an exigency, and as a matter of accommodation to the shipper.” In another place the bill of exceptions states: “ The proof further showed that some of the cotton brought to the cotton-yard of defendant by the plaintiffs'for delivery to the defendant for shipment, was not placed by plaintiffs on a certain plank platform of defendant, upon which defendant required all cotton bales to be placed before it would receive and receipt for them, but was placed in a street running along the side of such platform; but testimony was introduced by said plaintiffs, going to show that the station agent did take cotton bales from this street and receipt for them.” In another place, in setting out testimony, it is said, “ that plaintiffs frequently and persistently violated these rules and regulations of the defendant company as contained in such ‘ notice to cotton shippers and instructions to agents,’ against the-protest of the station agent at Eufaula.” It is nowhere shown that the station agent ever did refuse to receive and ship cotton that was delivered for shipment, because not delivered in conformity with the printed rules and regulations.

It i's contended for appellant that inasmuch as the station agent had positive instructions from the superintendent not to receive or receipt for cotton to be shipped, unless delivered in accordance with the printed directions, and inasmuch as the shippers in this case had notice of these regulations, 'by receiving a copy thereof, then, not having received the agent’s receipt for the cotton, they have shown no legal delivery to the railroad, and can not-recover. Such is undoubtedly the law, if the testimony stopped here. Against this, it is replied for appellees, that the railroad company7, through its agent at Eufaula, has permitted a usage to grow up, which dispenses with the regulations prescribed in the circular, and constitutes the act done in this case a legal delivery to the railway company7. To this it is rejoined, that no knowledge of such violation of the regulations is traced to Naoul, the superintendent, and hence the railroad company is not bound by such usage, if proven to have been established.

We think this is too narrow a view of the question. Nail-roads usually7 have extended lines, and along those lines are many, depots, or stations, at which the business of receiving and delivering freight is carried on. . The trading public, as a rule, have no access,to the-superintendent, and can only know the station agents, with whom they have dealings. They can have no control of the business regulations of the railroad,- and have no power of appointment or removal. Whatever regulation, custom or usage such station agent adopts, or permits to be adopted, the public must either conform to, or will feel itself justified in conforming to. The rules observed by shippers in their general transactions, • if continuous or frequent, although not universal, grow into a usage, which would authórize others to treat it as the proper rule, and as an element of the contract of affreightment. This constitutes the very spirit, the intent of a usage of trade. It supplies, by implication, an unexpressed fact, or link in the chain of facts, which go to make up and prove the contract. And we think it no answer to this, that no testimony was offered of this violation of instructions on the part of the agent, tending to trace notice of it to the superintendent. It was the duty of the corporation to keep itself informed of the manner in which its station agents conducted their agency, their habit, or usage in the matter of receiving and delivering freight; and we think it would be highly detz-imental to the public service, if we were to permit a railroad coz’poration to escape responsibility for the consequences of a usage, which its own trusted agents had permitted to grow up, and be acted upon. — Piedmont & Arlington Ins. Co. v. Young, 58 Ala. 476. There was sufficient testimony to justify the court below in submitting to the juz-y the inquiry whether or not there was a usage at the Eufaula depot of the defendant railroad company to dispense with the regzzlations prescribed in the supez-intendent’s circular. It will be z-eznezubered there was testimony tending to show there had been a frequent, if not general, disregard of those regulations, commencing soon after they were issued, a period of more than -three years, before the loss coznplained of in this'case. That is certainly a sufficient tizne to establish a usage of trade. Time, the testimony was in conflict as to the frequency and extent of the violation. The question, which phase of the evidence was the true one, was for the jury._

As we’ have said, the question in this case is, was there, or was there not a delivez-y of the cotton to the railroad. In Hutchinson on Carz-iers, § 90, is this language: “ "While it is the uzidoubted general rzile that the delivery, to'bind the can’ier, znust be znade either.to hizn, or to sozne one with authority frozn him, or who may be rightly presumed to have such authority, it is not to be understood that it is not subject to such conventional arrangements between the parties as they may choose to make in regaz-d to the zuode of delivery, or that it may not be varied by usage, or by a particular course of dealing between them. . . . If, therefore, the parties agree that the goods may be deposited for transportation at any particular place, and without any express notice to the carrier, such deposit will be a sufficient delivery; and proof of a constant and habitual practice and usage of the earner to receive the goods when they are deposited for him in a particular place, without special notice of such deposit, is sufficient to show a public offer by the carrier to receive goods in that mode, and to constitute an agreement between the parties, by which the goods, when so deposited, shall be considered as delivered to him, without any further notice. Such a practice and usage are tantamount to an open declaration, a public advertisement by the carrier, that such a delivery should, of itself, be deemed an ácceptance by him; and to permit him to set up, against those who had been thereby induced to omit it, the want of the formality of an express notice which had been thus waived, would be sanctioning injustice and fraud.” Now, it seems to us this is a clear statement of the principle, and the ground on which it rests. See also II). § 91.

The bill of exceptions does not purport to set out all the evidence, and we must presume there was testimony to justify all the rulings of the court, if, under any state of proof, they would be free from error. — Alexander v. Alexander, 71 Ala. 295, and authorities cited. Under the statement of testimony found in this record, we are not informed whether its tendency was to prove a usage for the station agent to receive and receipt for cotton delivered in violation of the regulations, before it was placed on the platform for shipment, or whether the usage simply had the extent, that when cotton was delivered in disregard of the instructions, he would himself have the cotton placed on the platform, and otherwise prepared for shipment, and then give the railroad’s receipt for it. The statement of testimony bearing on this question is as follows: “ Testimony was introduced by plaintiffs going to show that the station agent did take cotton bales from the street, and receipt for them; ” and the further fact that plaintiffs had no receipt for the nine bales of cotton, the subject of this suit. No question appears to have been raised in the court below on this shading of the question, and we can not consider it. We must presume, in the absence of averment to the contrary, that the testimony was such as to justify the circuit court in submitting the question of usage, as applied to this case, to the determination of the jury. The question, then, is, did the court correctly declare the law, upon any possible state of testimony bearing on the question. — 1 Brick. Dig. 336, § 12. The testimony, as recited, leaves this question in some obscurity.

Under the rules declared above, the circuit court did not err in refusing to give charges 2, 3, 4, 5, asked by the defendant. Each of them ignored the question of usage, and made the defendant’s liability to depend alone on compliance by the plaintiffs with the regulations prescribed in the circular. The charge given by the court at the instance of the plaintiffs is in harmony with our views, and is free from error. Neither did the circuit court err in instructing the jury as to the method of ascertaining the value of the cotton. ¥e must suppose, in favor of the ruling, that there was testimony tending to show the average weight, class, and value of the cotton delivered, or claimed to have been delivered, possibly as part of. a larger lot.

The first charge requested by the defendant raises a somewhat different question. It asserts that a failure by plaintiffs to produce the railroad’s receipt for the cotton, made it incumbent on them to account for the loss of the receipt, or [and] failing therein, such failure must be taken as prima fade evidence that the goods they claim to have delivered to defendant, never were delivered. It is n.ot claimed in this case that any receipt ever was given for the nine bales alleged to have been lost. It is stated as-fact that none ever was given. There was, therefore, no testimony which raised inquiry as to a loss of the receipt. None had been, given. Charges should be framed in reference to the testimony; and if a charge asked raises inquiry on a matter of fact, of which there is no testimony, it should always be refused. Its only tendency is to multiply inquiries, and confuse the jury. That charge was rightly refused for this reason. — 1 Brickell’s Digest 338, § 41; lb. 339, § 61; lb. 340, §§ 64, 65.

Section 2139 of the Code of 1816 makes.it the duty of common carriers to give receipts for merchandise delivered to them for transportation. »Their failure to do so inayrendpr proof.of .delivery more difficult. It can not vary their liability, if deliveiy is satisfactorily shown.

Affirmed.