Evans-Terry Co. v. Liberty Mills , 127 Miss. 120 ( 1921 )

Smith, C. J.,

delivered the opinion of the court.

The appellant, the Evans-Terry Company, is engaged in the wholesale grocery business at Laurel, Miss. The ap-pellee, Liberty Mills, operates a flour mill at Nashville, Tenn., and sells the flour milled therein to the wholesale trade. T. C. Thompson is a broker doing business at Laurel and is -the appellee’s authorized agent for the sale of its flour to the extent of soliciting orders therefor and forwarding them to the appellee for confirmation. The price quoted by the appellee to its customers for its flour and that at which the flour here in question was sold included the transportation charges thereon to the place to which it was to be shipped. On the 9th day of June, 1917, the appellant placed a verbal oi’der with Thompson for a carload of flour, which, according to the evidence of both Thompson and the appellant’s manager, was to be delivered to the appellant at Laurel, Miss. Upon receipt of this order Thompson communicated it to the appellee by a telegram in cipher which when translated reads as follows:

“Answering ship Evans 35 bbls. 24 Vanity, 100 bbls. 24, ' 25 bbls. 12 Blue Violet 12.70 basis.”

The meaning of the word “basis” will appear from a report of the sale mailed by Thompson to the appellee on the same day that tbe telegram was sent, which report is as follows:

“Report of Sale.

“T. C. Thompson, Merchandise Broker.

“Laurel, Miss., June 9,1917.

“Sold to Evans-Terry Co., Laurel, Miss., for account Liberty Mills, Nashville, Tenn., shipment immediate, 100 bbls. in 24’s Blue Violets S. B. flour at 12.70 per bbl. 25 bbls. 12’s Blue Violets S. B. flour, basis 24" cottoif 35 bbls. 24’s Vanity S. B. flour sacks for Luxury. Delivered Laurel. Confirming exchange telegrams even date.”

On June 11th the appellee confirmed the order by a telegram to Thompson to that effect. It appears, however, both from Thompson’s telegram and from his report of the sale, that another telegram had passed between them which does not appear in the record. Pursuant to this order the appellee shipped a carload of flour to Laurel consigned to its own order, with direction to notify the appellant, and attached the bill of lading therefor to a draft on the appellant to be delivered to it upon the payment of the draft to the bank to which it was fonvarded for collection, upon the surrender of which bill of lading to the carrier and payment of the freight the flour would be delivered by the carrier to the appellant. The appellee, instead of paying the freight on the flour, deducted that amount from the amount to be paid for the flour by the appellant and made the draft for the difference. When the flour arrived at Laurel the agent of the delivering carrier permitted the appellant to inspect the flour before it had paid the draft or received the bill of lading. The flour was found to be in a damaged condition; the only conflict in the evidence relative thereto being as to the extent of the damage. The appellant on account of the condition of the flour declined to accept it or to pay the draft drawn on it for. the price thereof,, and it was afterwards sold by the carrier in order to collect its transportation charges.

The flour according to the evidence for the appellee was delivered to the railroad company in good condition, and the character of the damage thereto was such as to indicate that it was sustained while in transit. The appellant had been purchasing flour from the appellee through. Thompson for several years prior to the transaction here in question; the facts and circumstances of each purchase being practically the same as those surrounding the one here involved,' except as to the damage to the flour. Appellee’s manager testified that it did not intend to assume the burden of delivering the flour, but quoted the price thereof as including the freight merely for the purpose of enabling its customers to know what the total cost to them of the flour, including the freight, would be. He further testified that at the top of its invoices sent to its customers, including the appellant, for flour purchased, there appears a piflnted memorandum as follows:

“We sell goods less freight, but not delivered. Our responsibility ceases after delivery to public carrier.”

No such memorandum appears on the invoice introduced in evidence, but does appear on a paper designated by a memorandum thereon as “loading order,” but there is no evidence that any such memorandum, whether it appeared on the invoice or not, was ever brought to the attention of the appellant.

The appellant having declined to pay the freight, this suit was instituted by the appellee, which resulted in a verdict and judgment in its favor.

The principal assignment of error argued by counsel for the appellant is that the court below should have granted its request for an instruction to the jury directing a verdict in its favor, and one of the reasons assigned for the granting of that instruction is that the flour was to be delivered by the appellee to the appellant at Laurel, and that the appellee was under no obligation to accept the flour until so delivered in good condition.

Assuming that the flour was delivered to the carrier in good condition, whether or not the appellant was nnder obligation as between it and the appellee to accept the flour when it arrived at Laurel in a damaged condition depends upon whether or not the carrier in transporting the flour was the agent of the appellant or of the appellee. If of the former, it should have accepted the flour, if of the latter it was under no obligation to do so. Whether the carrier was the agent of the appellee or not depends on whether in making the sale the appellee assumed the burden of delivering the flour to the buyer at the point of destination.

Whether a seller who is to ship the goods sold to the buyer assumes the burden of delivery is, ordinarily, unless the contract of sale is in writing, a question of fact for the determination of the jury, but, if a verdict for the shipper on the theory that he had not assumed the burden of delivery would not be warranted by the evidence, the jury should be peremptorily instructed to find for the buyer as in other cases wherein the question of. the granting of such an instruction arises.

Leaving out of view the evidence of the appellant to the effect that the flour was to be delivered to it at Laurel, the consignment of the flour by the appellee to its own order and the drawing of the draft by it on the appellant for the price thereof with the hill of lading attached is prima-facie evidence that the delivery was to be made to the appellant ar Laurel. Rosenbaum v. Davis, 111 Miss. 283, 71 So. 388.

The evidence relied on to overcome this prima-facie case is wholly insufficient for that purpose, being simply to the effect, as hereinbefore pointed out that the appellees did not intend to assume responsibility for the flour after delivering it to the carrier, which intention was not disclosed to the appellant unless by the printed memorandum to that effect at the top of the invoice or.“loading order,” which memorandum is not shown to have been brought to the appellant’s attention.

The peremptory instruction requested by the appellant should have been given.

Reversed, and judgment here for the appellant.

Reversed.