A. P. Loveman & Co. v. Alabama, Tennessee & Northern R. R. , 175 Ala. 316 ( 1911 )

McCLELLAN, j.

Mr. Hood’s contemporary, yet wholly distinct and independent, relations of warehouseman and of “cotton agent” of the defendant, which was without interest, in any degree, in the warehouse business conducted by Mr. Hood individually, rendered it impossible, under the doctrine of the decision in Lehman, Durr & Co. v. Pritchett, 84 Ala. 512, 4 South. 601, for Mr. Hoed, as warehouseman, to deliver, actually or constructively, the cotton in question to the common carrier (the defendant, appellee) while there was outstanding, undelivered and uncanceled, warehouse receipts tlierefor, issued by him as warehouseman. Without delivery to the common carrier, no responsibility or liability, in respect of the cotton, could have or did exist against it. There is no statute obviating, or attempting to obviate, the necessity of delivery, actual or constructive, in-order to impose responsibility or liability upon a carrier. Custom is impotent to avoid the requirements of positive statute law.

Upon this theory, independent of any others advanced or adopted by the trial court in giving the affirmative charge for the defendant (appellee), that ruling was clearly justified.

Affirmed.

Anderson and Mayfield, JJ., concur in tlie opinion. Simpson, Sayre and Somerville, JJ., concur in conclusion. ■

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