St. Louis Southwestern Ry. Co. v. Browne Grain Co. , 1914 Tex. App. LEXIS 625 ( 1914 )

We are of the opinion the petition does not state a cause of action against appellees, and that the judgment therefore should be affirmed, without inquiry as to whether, if it did state a cause of action, the statute of limitations of two years would be applicable to it or not.

It appears from the allegations that appellees bought the corn of the consignors thereof f. o. b. the cars at the points where the shipments originated. It further appears that bills of lading covering the shipments, containing a stipulation that "the owner or consignee should [shall] pay the freight and all other lawful charges on said property, and, if required, should [shall] pay the same before delivery," were issued by appellant to the consignors. And it further appears that appellees, having sold the corn, indorsed the bills of lading and delivered same to the purchasers, to whom appellant delivered the corn at the points to which same was destined. It is not alleged, except as a conclusion of the pleader from facts alleged, that appellees were the consignees named in the bills; and from the same facts the pleader draws another conclusion, to wit, that appellees were "the assignees of the shipper or person who signed the bills of lading." If by the latter conclusion the pleader meant, as it seems he did, that the consignors were also the consignees, and, as such, had assigned the bills of lading to appellees, then it is not consistent with the other conclusion drawn from the same facts; and for that reason, and for the further reason that, like the other conclusion, it was not warranted by the facts stated, it should not, any more than the other conclusion, be given any effect in determining the sufficiency of the allegations to show a cause of action. Ewing v. Duncan, 81 Tex. 236, 16 S.W. 1000. In the case cited the court said: "Courts sit to try causes upon positive averments, and not to hear and determine issues presented by allegations which affirmatively show that the pleader is in doubt as to the truth of the matter alleged."

But, if the conclusions of the pleader should be treated as allegations of fact, and not within the rule announced in the quotation just made from the Ewing Case, it would still appear that the petition did not state a cause of action against appellees; for, if they were neither the consignors nor consignees of the corn, nor the persons to whom same was delivered at its destination, but merely the assignees or indorsees of the bills of lading, they clearly were never liable to appellant for the freight. And, if they were the consignees, the liability which prima facie would rest on them as such was shown not to exist by the allegation charging that appellees, before the corn was delivered, indorsed the bills of lading, and so assigned the property to other parties, to whom same was delivered by appellant. 4 Elliott on Railroads, § 1559; 2 Hutch on Carriers, §§ 807, 808. In the work first cited it is said: "If the consignee assigns the bill of lading before the goods are delivered to him, his indorsee, by accepting them, usually becomes liable, and the carrier, by delivering them to the latter, releases the consignee, unless the indorsee received them as the consignee's agent." The same rule is thus stated by Hutchinson: "If the consignee assigns the bill of lading before the goods are delivered to him, and thus enables his Indorsee to receive them, he does not become liable for the freight, unless his indorsee received them as his agent. The ordinary contract of the carrier is to deliver the goods to the consignee or his assigns, ``he or they paying freight,' and whoever accepts them under such a contract becomes liable for the freight; and if the carrier delivers them to an assignee of the contract, without relying upon his lien to secure its payment, he must be understood as relying upon the personal liability of the assignee alone, if the assignee does not act as the agent of the assignor. A new contract arises, under such circumstances, between the assignee and the carrier." It not only does not appear from the allegations that the parties to whom the corn was delivered were appellees' agents, but, on the contrary, it appears therefrom that at the time the corn was delivered to said parties they were not such agents, but were the owners of the corn by purchase from appellees. Treating appellees as the consignees named in the bills of lading, we do not think the stipulation therein that the "owner or consignee" should pay the freight affects the conclusion we have reached. That stipulation should, we think, be construed as meaning, not the owner or consignee of the corn at the time it was shipped, but the owner or consignee thereof at the time it was delivered by appellant.

The judgment is affirmed.