Bashinsky v. Seals , 135 Ala. 357 ( 1902 )

SHARPE, J.

If tlie delivery of plaintiffs cotton to tlie compress company was authorized, that delivery ended all duty and liability which the law imposed' on defendant as warehouseman with respect to the cotton. The talcing from the compress company of a receipt for the cotton was not embraced in that duty, unless by special agreement, express or implied, the authority to deliver was conditioned upon the procurement of a receipt, in which case it may be that the plaintiff, if not acquiescing in the delivery, could have ignored it and held the defendant to answer either in assumpsit for a breach of the contract of bailment, or in tort as for a breach of duty attached by the law to that contract. Tinder such conditions the failure to deliver or the wrongful disposition of the cotton would constitute the gravamen of an action appropriate for recovery. This complaint does not state such a case. The conduct it attributes to defendant as being tortious and damaging is an alleged negligent failure on his part to obtain receipts shoAving delivery of the cotton to the compress company, the delivery itself not being complained of. Hoav any duty to obtain a receipt Avas made incumbent on defendant is not shown, unless by a custom Avhich is alleged to have existed as between the parties. A course of dealing or customary mode of transacting business inlei• partes may afford an inference of Avhat the parties may have silently understood in regard to a particular transaction falling within the custom, and may, therefore, be evidential of an agreement. But from the facts aArerred in this complaint, including the custom of taking receipts for cotton carried from the Avarehouse to the compress company, it does not follow as a legal conclusion that there Avas any contract Avhere-by the custom Avas made to operate as a limitation upon the authority given by plaintiffs to the defendant to deliver the cotton in question, or whereby the defendant became otherwise bound to procure a receipt. Under the facts as averred, defendant’s omission in that regard amounted to a departure from the alleged course of business — a breach of custom and not a breach of legal duty, either general or contractual. Failing to show such a.breach, the complaint was not only subject to the demurrer, but was insufficient to present a cause of action. Whether the mere omission to obtain a receipt could have proximately.caused a loss of the cotton delivered is not a question raised by this record.

The judgment granting a new trial involved no error, and will be affirmed.