Louisville & Nashville Railroad v. Bernheim, Bauer & Co. , 113 Ala. 489 ( 1896 )

McCLELLAN, J.

The fact that Bernheim, Bauer & Co. insisted that the goods, which the railroad, it is alleged, failed to deliver, became the property of Hughes on their delivery to the carrier at-New York, and brought an action against Hughes for the price on that theory, is certainly not conclusive against the title they now assert to the property. Their understanding of the terms of the sale arising, perhaps, from the fact that it was their rule and custom to make sale f. o. b. at New York, though they sometimes sold for delivery at the point of destination, or, it may be, from the report or order of their travelling salesman, Prolsdorfer, was that the goods became the property of Hughes as soon as they passed into the possession of the carriers ; and this was also Prolsdorfer’s understanding of it. Upon this they sued Hughes for the price, and on the trial of that case Hughes testified the one way and Prolsdorfer the other, the juay found for Hughes, and there was judgment accordingly. It is shown in this case that the sellers had no notice of Hughes’ version of the transaction until he advanced it in evidence at the trial as a defense to their action against him. The present defendant was a stranger to that suit and is not helped or hindered in the present action by the result of it, nor by the fact that Beamheim, Bauer & Co. proceeded against Hughes for the price of the goods, except that it constitutes an inconclusive admission on their part that the property did not belong to them. That suit can not amount to an efficacious and binding election by them in this case, for the reason that they were not acquainted with all the facts when they instituted it: they did not know that Hughes claimed that the goods were not to become his property until delivered to- him at the point of destination, and for the further reason that the present defendant was not within the operation of any election they may have then made. It was not an estoppel upon them to maintain this suit, because the defendant was a stranger to that suit and could not have been affected by the result of it: it lacked the mutuality essential to estoppel, Treating their conduct in prosecuting that suit as a mere admission that the goods did not belong to them, we have on one side of that issue this admission, made upon an imperfect knowledge of the facts, and the testimony of Prolsdorfer, and on the other the testimony of Hughes. The jury had a right to find in lino with this admission of the plaintiffs and the testimony of Prolsdorfer to the effect that title to the consignment passed into Hughes by the terms of the sale when the goods were delivered to the carrier at New York, or to believe the positive testimony of Hughes to the effect that by the terms of the sale the goods were to become his property only upon their arrival at the terminal point of the shipment; and it would do violence to the principles frequently declared by this court in respect of applications for new trials, to hold that a verdict either way upon this evidence should be disturbed for want of support in the evidence.-Cobb v. Malone, 92 Ala. 630.

The other issue in the case, viz., whether the shipment was to Evergreen, Ala., or Crestview, Fla., likewise stood upon conflicting evidence of such character as that the jury would have been fully justified in determining it either for the plaintiffs or the defendant, and their finding for the plaintiffs is not open to assault on a motion for a new trial.

The evidence of witnesses on the trial tended to show that Crestview, Fla., and not Evergreen, Ala., was the shipping point for Lakcview, Ala., and the proper place for shipments for the latter place to be carried and delivered. If the jury found the fact in line with this tendency of the evidence, they should not have found that the railroad company performed its duty in carrying the goods to Evergreen even though the guide referred to in charge 2, designated that place as the railway destination of shipments to Lake view. The carrier insures delivery at the proper place unless prevented by the act of God or the public enemy, and he and not the shipper must suffer from the mistakes of his agents, or of guide books upon which he relies, as to what is the proper place of delivery. Said charge — as also charge 1, on considerations already adverted to — was, therefore, properly refused.

Affirmed.