Clinton v. Nothern , 123 Ark. 235 ( 1915 )

Kirby, J.,

(after stating the facts). (1) It is contended that the court erred in permitting the introduction of testimony showing the weight of the shipment of meal at any other place than Dardanelle, where it was delivered to the railroad company. This contention is without merit however, for the written contract of sale of the cotton seed meal expressly provides that the weights ■and quality are guaranteed 'at destination, and it certainly could not .be held that the point of origin of the shipment, Dardanelle, Ark., was the destination thereof, when the bill of lading expressly stated “Destination Battle Creek, Mich.; hold at Galesburg, Mich.”; because the bill of lading recited the shipment was received from W. C. Nothern and consigned to his order and it showed also at the bottom that the Twin City Investment Company was the shipper.

The contract shows that the cotton seed meal was to be shipped from Dardanelle, and the price was made f. o. b. the cars there. The testimony shows that the weight of the car at Little Bock disclosed a shortage of five tons, that it arrived at Galesburg with the seals intact, where twenty tons were removed, and that it contained but five tons more upon reaching Battle Creek, with no indication of displacement or removal of contents since the unloading at Galesburg.

The appellee had the right to show the weight of the shipment at the point of destination where the contract guaranteed the weight and quality and this was done to the satisfaction of the jury by the testimony introduced, notwithstanding the court’s instructions to the jury were more favorable to appellants than they were entitled to.

(2) The contract of carriage recites “weight subject to correction” and we do not think the court erred in allowing the weight of the car at Little Bock to be shown as it was. Of course if the weighing disclosed a shortage there, it would' conduce to prove that the. amount charged for was not'shipped to the destination, and neither do we think there was error in permitting the agent of the railway company to testify about the weight of the car from the records .made by the weigher in the scale book, because the entries had not been made by himself. It was shown that it was the duty of the weigher to weigh the cars and 'to record the weights thereof in the record book, which was required to be delivered to the agent and that the freights were charged and adjusted according to the records so made. Berry v. State, 103 Ark. 153.

(3) There was no objection below to the introduction of such record, because the entries were not shown to have been contemporaneously made with the weighing of the car and such specific objection not having been made there, it will not avail here. Railway v. Murphy, 60 Ark. 342.

The jury found in appellees favor as already said, upon the question of fact, and under instructions more favorable to appellants than they were entitled to, under the law.'

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