Civil action to recover the value of four bales of cotton lost in transit.
On 10 November, 1919, Corbett Moore delivered to the East Carolina Railway Company at Macclesfield, N.C. for shipment to J. W. Perry Co., at Norfolk, Va., nineteen bales of cotton under a contract of shipment containing the following provision: "Suits for loss, damage or delay shall be instituted only within two years and one day after delivery of the property, or, in case of failure to make delivery, then within two years and one day after a reasonable time for delivery has elapsed." *Page 162
Fifteen bales of this shipment were delivered in due course, and about which there is no complaint. Claim for the four bales was duly filed on 5 May, 1920.
The plaintiff contended and offered evidence tending to show that the four bales, for which suit is instituted, were retained by the East Carolina Railway Company on its platform at Macclesfield, N.C. until the summer of 1920; that it then shipped them to Farmville N.C. and later consigned them, or four substituted bales, to J. W. Perry Co., which were delivered 25 September, 1920.
It is agreed that ten days was a reasonable time within which the shipment of 10 November, 1919, should have been delivered, and it appeared from the plaintiffs' evidence that this action was instituted 25 February, 1922, more than two years and three months after the expiration of a reasonable time in which to make delivery.
At the close of the plaintiffs' evidence, on motion of the defendants, the court entered judgment as of nonsuit, upon the ground that suit was not instituted within the time limited in the contract. Construing a similar limitation in an interstate bill of lading, with respect to when suit should be brought, the following conclusion was reached in the case of Holmes v. R. R., 186 N.C. p. 63:
"We think the provision now under consideration must be held to mean that suits for loss, damage or delay shall be instituted only within two years and one day after delivery of the property, when delivered within a reasonable time, or, in case of failure to make delivery within a reasonable time, then within two years and one day after a reasonable time has elapsed. Without regard to the contract of carriage, when a common carrier takes into its possession goods for transportation, the law imposes upon the carrier the duty (1) to transport said good safely, and (2) to deliver them within a reasonable time. Therefore, the stipulation inserted in each of the instant bills of lading should be interpreted, not only with reference to the language used, but also with regard to the law bearing on the subject of the contracts."
To like effect is the decision in Rogers v. R. R., 186 N.C. 86.
Upon authority of these cases, the judgment of nonsuit entered below must be upheld.
Affirmed. *Page 163