Smith v. Callaway

Atkinson, J.

The term “no arrival, no sale,”* as employed in the contract, refers to the arrival of the vessel bringing the goods to this country, and not to delivery by the seller to the purchaser by rail after the vessel has reached the port of entry in this country. The controlling question brought for review by the assignments of error alleged in the petition for certiorari is whether the defendant was guilty of a breach of the contract. The contention is that the contract was not breached, because the clause in the contract, “Sellers not responsible for contingencies beyond their control,” comprehends a loss occurring under the circumstances of this case, and excuses the failure to deliver. The circumstances are, that the nitrate of soda was shipped strictly in accordance with the original contract as modified by subsequent agreement of the parties, made at the request of the plaintiff for his convenience; and that the nitrate and ear in which it was contained were destroyed by fire while in possession of the railroad, which was being operated by the United States Government. The modification of the contract extended to changing of destination from Washington, Georgia, to Brick House, a prepay station about five miles beyond Washington. The shipment moved over the Central of Georgia Bailway from Savannah to Washington, where it was turned over-to the Elberton and Eastern Bailroad to be carried to Brick House. It was destroyed between Washington and Brick House. The loss of the nitrate in these circumstances was not a “contingency” within the meaning of the contract. Notwithstanding the modification of the contract, the goods were consigned to the shipper’s order, with draft for the purchase-money attached to the bill of lading. In these circumstances the possession of the railroad was the shipper’s possession relatively to the consignee, and as to him the presumed negligence of the railroad was the negligence of the shipper. A loss by negligence imputable to the shipper is incompatible with “contingency beyond” the shipper’s “control.” In this view there is no merit in the assignment of error upon the judgment of the Court of Appeals.

Judgment affirmed.

All the Justices concur, except Hines, J., dissenting.