Brown Coal Co. v. Wright , 139 Ark. 536 ( 1919 )

WOOD, J.,

(after stating the facts). Under the contract, evidenced by the order and accepted by the appellant, the delivery of the car by the appellant to the railroad company at Memphis was a delivery to the consignee. The title to the coal under the contract passed to the consignee, the appellee. The appellant had the right under the contract to demand of appellee payment for the car of coal, and if not paid on the 10th day of the month succeeding shipment, the right to draw on the appellee for the amount, and appellee became liable to the appellant for the purchase money.

But that is not the question involved here, for the appellee admits that she is liable to the appellant for the purchase price of the coal, but she claims that through the fault of the appellant in not giving her notice of'the time when the car was shipped a demurrage amounting to $196.74 accrued which she paid under the directions of appellants, and which she would not have paid but for such instructions.

The testimony tended to prove that it was contemplated at the time the contract was entered into that the appellant should notify the appellee of the time when the car was shipped. The testimony tended to prove that the appellee received no such notice; that she was present through her agent at Thomwall looking for the car and ready to receive the same when it should arrive; that she received no notice from the railroad company at the time of its arrival at Thomwall until the demurrage in controversy had accrued; that she received no notice from the appellant by letter or otherwise that the shipment had been made and that after she ascertained that the car had finally arrived at Thomwall and demand for the amount of demurrage was made upon her she immediately communicated with the appellant by wire asking for instructions and received the answer set forth in the statement suggesting that she unload the car of coal promptly and release the ear.

The testimony further tended to prove that the appellant was informed by appellee’s agent and attorney, after the demurrage had accrued and before she paid the same, that she would not accept and unload the car and pay the demurrage, and “that it was the distinct understanding between the appellant and the appellee, acting through her attorney, that the appellant should pay this demurrage; that, after this agreement was arrived at between the appellant and the appellee, the appellee paid the railroad company the demurrage and took the railroad company’s receipt therefor, whereupon the car was released and accepted by the appellee.

The testimony thus adduced was amply sufficient to sustain the finding of the court that the appellant was liable to the appellee for the amount of the demurrage charges under its express agreement to pay the same, and the court did not err in so holding.

There is no error in the judgment, and it is therefore affirmed.