Clegg v. Railroad Co.

Montgomery, J.

The defendant company received at Greensboro, on Sunday afternoon, the 15th of November, 1901, a car-load of bananas from Baltimore consigned to the Greensboro National Bank, “To order. Notify Z. V. Clegg.” Clegg was notified by tire bank of the arrival of the goods, and on the 16th, 17th and 18th of November demanded of the freight agent'of the defendant at Greensboro the delivery to him of the same. A dispute over the amount of the carriage due upon the shipment having arisen the fruit was not delivered, and before the plaintiff got possession of it it was greatly injured by a spell of freezing weather, by which a loss was inflicted on the plaintiff. The defendant deducted from the freight charges the excess as contended *149for by tbe plaintiff, tbe same being erroneous. Tbe amount demanded by defendant as dues for carriage was $148. Tbe amount offered by tbe plaintiff was $106, wbicb amount was afterwards found to be tbe amount due. Tbe defendant introduced no evidence. Tbe plaintiff bad not received from tbe bank a transfer of tbe bill of lading at tbe several times wben be made tbe demands for tbe delivery of tbe fruit and did not receive it until tbe 18th of tbe month. If tbe defendant bad refused to deliver tbe goods because tbe plaintiff bad not received from tbe bank tbe assignment or transfer of tbe bill of lading, or partly for that reason, tbe defendant’s contention, to-wit, that tbe plaintiff bad no right to make tbe demand for tbe goods until be presented tbe bill of lading would rest on a solid foundation. But it is clear, from tbe evidence of tire plaintiff, that tbe defendant made no point over tbe bill of lading not having been presented by tbe plaintiff, but rested its refusal on tbe ground that tbe plaintiff refused to pay tbe carriage due. Tbe plaintiff testified that nothing was said to him by tbe freight agent as to bis right to receive tbe bananas, and that nothing was said about that matter until after they bad corrected tbe freight charges, wben be was told that be would have to get an order from tbe bank. Tbe defendant having at tbe times of tbe several demands assigned no other reason for refusing to deliver’ tbe goods than tbe refusal of tbe plaintiff to pay an excessive charge for carriage, ought not to be allowed to defeat the plaintiff’s right to recover tbe amount of bis loss on tbe ground that be did not present tbe bill of lading or any other order from tbe bank, an objection not under consideration, and not thought of. Railroad v. McGuire, 79 Ala., 395. He was treated by tbe company as if be was tbe consignee; and in this connection it is significant that tbe plaintiff in bis testimony said be had gotten tbe figures on tbe freight from tbe agent of the defendant in Greensboro before be bought *150tbe fruit. So far as it appears from tbe evidence, tbe defendant would not have delivered tbe goods even if the plaintiff bad presented tbe order from tbe bank. Tbe defendant’s purpose was to collect the bill for the freight-, and not so much to see that tbe plaintiff paid tbe consignor for tbe bananas. It was contended for the defendant that tbe plaintiff should have paid tbe excess of carriage, received bis goods and then sued tbe defendant for that excess. That was one of bis remedies, but be was not compelled to take that course. lie might not have bad tbe money with which to pay tbe excess of carriage; but, if be had, tbe defendant by its wrongful course could not compel tbe plaintiff to pay a greater amount than was due. Such a demand would place tbe law-abiding at the mercy of its violators. Tbe plaintiff recovered from tbe defendant tbe difference between tbe amount of sales of the injured fruit as made by tbe plaintiff and its value when it was received at Greensboro.

Affirmed.