Central of Georgia R'y Co. v. Montmollen , 145 Ala. 468 ( 1906 )

ANDERSON, J.

“A failure by the carrier to deliver goods within a reasonable time does not establish a conversion, but is a mere breach of contract; and the consignee cannot refuse to accept the goods on the ground of the delay and recover their full value, unless the delay destroyed the value of the goods entirely or caused Avhat is equivalent to a total loss.” — 5 Am. & Eng. Ency. Law, 221 ; Hutchinson on Carriers, § 775 ; Galveston Railroad v. Watson, 1 White & W. Civ. Cas. Ct. App. § 813 ; Shaw v. South C. R. R., 5 Rich. Law (S. C.) 462, 57 Am. Dec. 768. A mere delay being no conversion, the consignee must receive the goods, although he at that time has no use for them. He cannot refuse'to accept and recover the full value of the goods. — Baumbach v. G. C. & S. F. Ry. Co., 4 Tex. Civ. App. 650, 23 S. W. 693. And tlie mere fact that some of the articles ship-lied are missing does not justify the consignee in refusing to receive. — G. C. & S. F. Ry. Co. v. Booton (Tex.) 4 White & W. Civ. Cas. Ct. App. § 67, 15 S. W. 502.

In the case at bar, the defendant at the trial proved an offer to deliver the box of tools personally to the plaintiff in the law office of Charles P. Jones, which the plaintiff admitted, but claimed that the box had been broken and some of the tools were missing, and that he refused to accept what was offered, but gave no reason for the refusal. The plaintiff offered no proof as to the damage to the box, or of the articles missing and the value thereof, and which was incumbent upon him. The defendant proved a delivery of what it received, and if in a damaged condition, or some of the articles were missing, it devolved upon the plaintiff to prove these facts as well as any damage for delay. The defendant by the delivery attempted to relieve itself of the breach set up in the complaint and which had been denied by the plea of the general issue, and it had the right to do this without a special plea.

Plaintiff contends that-there was no lawful delivery, in that it was not at the usual place of delivery, and cites a modification of the common-law requirement as to delivery. We think the modification is intended to relieve the carrier of making a personal delivery; but whether it could relieve itself by a delivery at a place other than its freight depot we need not decide, for the plaintiff by his unqualified refusal of the box waived the right to have it delivered elsewhere.

It appears from the record that the trial judge included in’ the judgment the full value of the box and tools, which we think, was error.

Reversed and remanded.

McClellan, C. J., and Tyson and Simpson, JJ., concur.