United States Express Co. v. Rea & Co. , 121 Ark. 284 ( 1915 )

Kirby, J.,

(after stating the facts). It is contended for reversal that the court erred in the giving and refusing of said instructions and in the admission of incompetent testimony.

(1) The law is well settled that the delivery of goods to a common carries when made in pursuance of an order to ship, is in effect a delivery to the consignee and the consignor thereafter has neither the title nor the right to the possession of the shipment nor to maintain an action for damage thereto. Roberts Cotton Oil Co. v. Grady, 105 Ark. 53; Gibson v. Inman Packet Co., 111 Ark. 521; Capitol Food Company v. Mode & Clayton, 112 Ark. 165; Warren & Ouachita Valley Ry. Co. v. Southern Lbr. Co., 115 Ark. 221.

(2) In Burdick on Sales, pages 73 and 74, after announcing the rule, it is said: “In accordance with this rule, when the contract calls for delivery ‘f. o. b.’ at a designated place, the title will pass upon such delivery, unless the facts of the case show the intention of the parties to be that it shall pass at some other time.”

(3) From the testimony relative to the terms of the contract of sale, it can not be said to be undisputed that it was the intention to make the sale 'Conditioned on the arrival of the berries at Oklahoma City on the morning of the day after the shipment from Yan Burén, as was customary in the transportation, and .as would have been the case, 'but for the delay or failure to transfer the consignment to the first train passing through Wister after its arrival there, as was generally done.

Nor does the undisputed testimony show that it was not the intention to make the sale conditioned on the delivery of the berries in Oklahoma City at 5 A. M. the next morning, which would have been the case after their delivery to the express company at 3:30 P. M. on May 22, but for the failure of said company ¡to .make the transfer to the first connecting train >at Wister.

If the sale was not so conditioned, the title passed to the consignee upon delivery of the berries to the carrier in time for arrival at destination the .next morning and the shipper would have had no right to maintain the suit for damages and under the state of the testimony the appellant, it being a question for the jury, would have had the right to its said instructions numbered 5 and 10 but for the order of the consignee authorizing the carrier to adjust and settle the claim for damages with the shipper.

It being doulbtful whether the sale was complete upon delivery to the consignee or conditioned upon the .arrival of the shipment at the destination the next morning, the said order of the consignee authorizing the adjustment and settlement of the claim with the consignor and releasing the carrier from any claim of liability, reduced the matter to a certainty, and ¡since said order and release barred the consignee from any claim for damages to the shipment, it authorized the recovery or bringing of suit therefor by the consign or. .

It is questionable whether the sale was complete upon delivery of the berries to the carrier or delivery at destination, the consignor or the consignee only having the right to sue for damages according as the jury might find the fact to be and the consignee having released the carrier from the liability in the consignor ’s favor and authorized the settlement with him, no error was committed in refusing said requested instructions 5 and 10 and in giving instruction numbered 1.

(4) The court erred in its instruction submitting the question of market value of the berries at the place of delivery, since the contract .shows that they were sold at $1.85 per crate and if it had been performed the plaintiff could not have received more in ¡any event.

The jury however, found in accordance with the fact fixing the damages ¡at the sale price without regard to the erroneous instruction and no prejudice could have resulted from it.

(5) Neither does the error committed- in the introduction of the testimony relative to the settlement of like claims by appellant of others for damages to berries, shipped on the same train the day of this shipment, call for ia reversal of this case, since the undisputed testimony shows that the carrier was negligent in failing to have the consignment transferred to its first connecting-train at the junction point 'and was liable for the consequent damages for delay.

We find no prejudicial error in the record and the judgment is affirmed.