Atlantic Coast Line R. R. v. Jacob S. Schirmer & Sons

December 1, 1910. The opinion of the Court was delivered by The facts of this case are fully and clearly stated in the report of the master, F.K. Myers, Esq., whose report was confirmed and made the judgment of the Circuit Court. This being a case at law, the findings of fact below, having any testimony to support them, are not reviewable by this Court. The conclusions of law based upon the facts found are correct. The testimony shows that the shipment went over the lines of three connecting carriers. Plaintiff contends that, as the bill of lading was not in evidence, there was nothing to show a contract for through transportation and delivery, and, therefore, the presumption arises that the responsibility of plaintiff, the initial carrier, terminated upon its delivering the shipment to the next connecting carrier in good order, and, hence, that it was error to hold that the responsibility was upon plaintiff to trace the shipment and report delivery, if made, so that defendants might enforce payment of the consignee. The testimony shows that, upon demand of the defendants, the plaintiff accepted and assumed that responsibility, without question, from which a reasonable inference may be drawn that it was bound by the contract of shipment to do so. Defendants having relied upon its undertaking to do so, it will not now be allowed to repudiate the responsibility.

The correspondence between defendants and plaintiff's agent shows that, before the claim was paid by plaintiff, defendants called attention to their claim for this shipment several times, and asked for a report upon it, stating that the goods were sold on thirty days time, that the shipment had already been out for fifty days, and that they had lately heard that the consignee was "in a bad way financially," and requesting the stoppage of delivery, if the goods should arrive at destination, as they would hold the road liable for them. Nearly four months after receiving this information, plaintiff paid the claim, and not until a year afterwards did it notify defendants of the delivery of the goods and demand return of the money. Defendants' testimony tended to show that the consignee had made prompt payment for all prior shipments, but had never paid for this one, and that, in the meantime, he had gone out of business and moved away from Statesboro, and defendants had been unable to locate him.

From these facts and circumstances, we cannot say that the finding that the relative situation of the parties had changed was wholly without testimony to support it. While even the negligence of one paying money under a mistake of facts should not, in all cases, preclude his recovering it, he will not be allowed to do so, if the situation of the party receiving it has thereby been materially changed so that his original position cannot be restored. 22 A. E. Ency. L. (2 ed.) 624.

Affirmed.

MR. JUSTICE WOODS concurs in the result.