Opinion
No. 36506.
October 6, 1947.
1. SALES.
Ordinarily a delivery of goods to a carrier on a sale f.o.b. at place of shipment is a delivery to buyer, rendering it liable for purchase price despite delay in delivery at its place of business.
2. SALES.
If buyer directs goods to be sent to him by carrier without designating any particular carrier, delivery to carrier selected by seller, if proper care is used in his selection, is a delivery to buyer rendering it liable for purchase price despite delay in delivery at its place of business to same extent as though buyer had himself selected the carrier.
3. SALES.
Prepayment of freight by seller is evidence to show that seller assumed duty of delivery so as to preclude delivery of goods to carrier from operating as a delivery to buyer rendering it liable for purchase price despite delay in delivery at its place of business, but such prepayment does not necessarily show that fact.
4. SALES.
Fact that seller prepaid the freight did not preclude his delivery of goods to carrier from being considered a delivery to buyer rendering it liable for purchase price despite delay in delivery at its place of business, where seller prepaid the freight charges for buyer and wrote buyer of such fact and included it in his invoice as a charge against buyer, who made no objection because of such payment.
5. SALES.
Seller's delivery of goods to carrier was not precluded from being considered a delivery to buyer, rendering him liable for purchase price despite delay in delivery at its place of business, because bill of lading consigned goods to railway express company and not to buyer, where bill of lading contained notation directing express company to forward goods to buyer immediately, and such consignment vested in express agency no interest in property except duty of a carrier to further transport the property.
6. CARRIERS. Judgment.
Where a person has possession of, and a special property in, goods, he may maintain an action against a common carrier for their loss, regardless of whether some other person has an interest in them, and in such a case a recovery by one such person will bar another action for same cause.
7. CARRIERS.
Where carrier issues a straight bill of lading, carrier is liable to owner of goods covered by such bill subject to existing rights to stoppage in transit (Interstate Commerce Act, sec. 1 et seq., 49 U.S.C.A., sec. 1 et seq., sec. 102).
8. SALES.
Where seller of goods f.o.b. at place of shipment was vested with power to select method of transportation, the only restriction on seller's power was duty to use proper care in selection of carrier, and fact that seller selected more than one carrier instead of permitting initial carrier to select subsequent carrier did not preclude delivery of goods to first carrier from being considered a delivery to buyer, so as to render buyer liable for purchase price despite delay in delivery at its place of business.
9. SALES.
Even if seller of goods f.o.b. place of shipment improperly exercised his power of selection of carrier when he chose more than one carrier, buyer could not avoid liability for purchase price of goods upon delay in delivery of goods to its place of business on ground that delivery of goods to carrier did not constitute delivery to buyer, if seller used proper care in selection of initial carrier, where delay in transportation was with the initial carrier and not with second carrier.
APPEAL from the circuit court of Leflore county. HON. S.F. DAVIS, J.
Hardy Lott, of Greenwood, for appellant.
Because of the agreement on the facts in the case at bar only one question of law is presented for decision to this Court. That one point of law is whether or not the manner in which the goods were shipped by appellant to appellees was a sufficient compliance on appellant's part with the provision in the order that the goods should be shipped by November 25, 1945. It is agreed that the appellees ordered the goods from the appellant and agreed to pay the amount sued for as the purchase price for them; and it is further agreed that the appellant accepted this order. A contract was thus formed between the parties, and the sole provision of that contract about which there is any dispute is the provision in it that appellant should ship the goods by November 25, 1945. It is agreed that the appellant actually shipped the goods on November 20, 1945, but the dispute between the parties is whether or not the manner of shipment was a sufficient compliance with the agreement. If it was not, then it constituted a breach of contract on the part of appellant and the appellees would have the right to cancel the contract as they attempted to do. On the other hand, if the appellant did not breach the contract by his mode of shipment, then of course the appellees could not cancel it and are therefore liable to appellant for the purchase price that they contracted to pay.
Ordinarily, when a delivery is made to a common carrier according to the contract of sale or the direction of the buyer, the carrier is thereby made the agent of the buyer and title passes to the buyer, thus enabling the seller to maintain an action for the price as for goods sold and delivered.
Walker Brothers Co. v. Daggett, 115 Miss. 657, 76 So. 569; Planters' Oil Mill Mfg. Co. v. Falls, (Miss.), 29 So. 786; American Cotton Co. v. Herring, 84 Miss. 693, 37 So. 117; Cragin v. J.S. Eaton Bro., 133 Miss. 151, 97 So. 532; 46 Am. Jur. 371, Sec. 191, p. 725, Sec. 584.
It is a well-established general rule that when goods are to be shipped to the buyer, a delivery by the seller to the carrier designated by the buyer is a delivery to the buyer and constitutes a full performance of the seller's obligation to make delivery. This is on the theory that the carrier is made the agent of the buyer to accept the delivery. A delivery of goods to a carrier on a sale f.o.b. at the place of shipment is a delivery to the buyer. It is also well established that if the buyer directs the goods to be sent to him by carrier without designating any particular carrier, a delivery to the carrier selected by the seller, if proper care is used in the selection, is a delivery to the buyer to the same extent as though the buyer had himself selected the carrier. In the latter case, the seller, acting in this respect under the order of the buyer to forward the goods, is his agent in the selection of the carrier, and in either case the carrier is, in contemplation of law, chosen by the buyer.
46 Am. Jur. 347, Sec. 172.
It is the general rule, where the goods sold are to be shipped by carrier and the place of delivery is the point of shipment, that a delivery of the goods to a carrier, consigned and properly directed to the buyer, whether the carrier is one designated by the buyer or by the seller with the consent of the buyer, passes the title to the buyer if there is nothing else to show a contrary intention. In such case, the time and place of delivery are regarded as the time and place of sale, the carrier is deemed the bailee of the buyer for the purpose of transportation, and the seller is deemed the agent of the buyer in employing the carrier.
Pearson v. State, 66 Miss. 510, 6 So. 243; Planters' Oil Mill Mfg. Co. v. Falls et al., supra; Sethness Co. v. Home Ade Bottling Co. et al., 111 Miss. 151, 71 So. 308; Merchants' Manufacturers' Bank of Ellisville v. Phillip J. Toomer Lumber Co., 115 Miss. 647, 76 So. 565; 46 Am. Jur. 605, Sec. 440; 101 A.L.R. 292.
In the case at bar there is no doubt as to the intention of the consignor, this appellant, that the delivery to the carrier was intended to be a delivery to the appellees. The appellant's intention was obviously that the goods should be transported from Griffin, Georgia, to Greenwood, Mississippi, over the lines of the motor carrier and express agency. This intention is obvious from the following facts: (1) The appellant first advised with the two carriers as to the method of getting the goods from Griffin, Georgia, to the appellees at Greenwood, Mississippi, and then followed the method recommended by them for getting them to appellees. Clearly, his only purpose was to get the goods to the appellee. (2) The appellant delivered the goods to the motor freight line consigned to the Railway Express Agency at Durant with the words written thereon "Please forward to Aldridge Company, Greenwood, Miss.," and on the same day the appellant wrote the express agency at Durant instructing them to transport the merchandise to the appellees at Greenwood and enclosing with this letter to the express agency a duplicate of the shipping bill and labels addressed to the appellee to be placed on said merchandise by the Express Agency. The Express Agency through its Griffin, Georgia, office had already agreed to accept and transport the goods when delivered to it by the motor freight line. (3) On the same day that appellant shipped the goods he sent the appellees an invoice for them and also wrote them a letter expressly stating that the goods had been shipped to the appellees and the manner in which they had been shipped. In view of this letter there can be no doubt that the sole purpose and intent of the appellant in delivering the goods to the carrier was to get them to the appellees.
See Merchants' Manufacturers' Bank of Ellisville v. Philip J. Toomer Lumber Co., supra; Griffin v. Edward Eiler Lumber Co., 122 Miss. 265, 84 So. 225.
Acquiescence by the principal in the conduct of an agent whose previously conferred authorization reasonably might include it indicates that the conduct was authorized; if clearly not included in the authorization, acquiescence in it indicates affirmance.
Restatement of the Law of Agency, Sec. 43.
A contract for "shipment" in a specified time ordinarily means that the seller shall start the goods on their journey to the buyer at such time, while "delivery" within a specified time exacts of the seller completion of the journey and the turning of the goods over to the purchaser within that time; and where the seller contracts to ship in a particular month, the buyer cannot refuse to accept the goods because they did not arrive in that month.
55 C.J. 340, Sec. 332.
If the place of shipment is the place where, under the terms of the contract, delivery is made to the buyer, the fact that on delivery to the carrier the seller pays or guarantees the freight will not prevent the delivery from constituting a delivery to the buyer.
46 Am. Jur. 352, Sec. 176.
According to the rule prevailing in most jurisdictions, where a person has possession of, and a special property in, goods, it seems that he may maintain an action against a common carrier for their loss, whether some other person has an interest in them or not, and, in such case, it appears to be beyond question that a recovery by one such person will bar another action for the same cause.
9 Am. Jur. 931, 932, 933, Secs. 821, 822, 823; 39 Stat. 539, 542, U.S.C.A., Title 49, Secs. 82, 102.
Bell McBee, of Greenwood, for appellees.
If the delivery to a carrier is not accompanied by a sufficient appropriation of the goods to the buyer and for that reason title does not pass, the risk of loss does not fall upon the buyer. Furthermore, a delivery to a carrier does not charge the buyer with the risk or loss if the seller does not exercise due care and diligence to provide the buyer with a remedy over against the carrier.
46 Am. Jur. 464, Sec. 279.
If instead of consigning the goods directly to the buyer the consignment is to the seller's agent with instructions to him to deliver to the buyer, the title does not ordinarily pass on the delivery to the carrier but remains in the seller until delivery to the buyer by the seller's agent.
46 Am. Jur. 607, Sec. 440.
Where the shipper consigns the property to his own agent to be subsequently delivered to the purchaser, no property passes by the simple fact of delivery to the carrier.
The St. Joze Indiano, 14 U.S. (1 Wheat.) 208, 4 L.Ed. 73, 22 A.L.R. 420.
The payment of freight by the seller is, however, evidence to show that the seller assumed the duty of delivering at the point of destination, and will prevent, if such is the case, the delivery to the carrier from being considered a delivery to the buyer.
A.J. Neimeyer Lumber Co. v. Burlington M. River R. Co., 54 Neb. 321, 74 N.W. 670, 40 L.R.A. 534; 46 Am. Jur. 352, Sec. 176.
The delivery to the carrier must be such a transfer of possession as will remove the goods wholly from the dominion of the seller, and such as to entitle the purchaser to demand the goods of the carrier.
55 C.J. 371, Sec. 367 (4).
It is the general rule, where the goods sold are to be shipped by the carrier and the place of delivery is the point of shipment, that a delivery of the goods to a carrier, consigned and properly directed to the buyer, whether the carrier is one designated by the buyer or by the seller with the consent of the buyer, passes the title to the buyer if there is nothing else to show a contrary intention.
46 Am. Jur. 605, Sec. 440.
The term "consignee" when used in a bill of lading means the person named in the bill as the person to whom delivery of the goods is to be made.
Pennsylvania R. Co. v. Townsend, 90 N.J.L. 75, 100 A. 855; Gillespie v. Winberg (N.Y.) 4 Daly 318, 320; 8 Words Phrases 684.
Delivery was not complete to the appellees when the merchandise was delivered by the appellant to the Georgia Railway Express, Inc., on November 20, 1945, for at that time Railway Express Agency at Durant, Mississippi, was made the consignee, freight was paid to Durant, Mississippi, by the appellant, and to the Railway Express Agency at Durant, Mississippi, there were sent labels and instructions for shipping the merchandise to appellees. The consignee, or Railway Express Agency at Durant, Mississippi, was the one entitled to the possession of the goods and not this appellee until the goods reached Durant.
See Butler v. Smith Tharp, 35 Miss. 457; 46 Am. Jur. 607, Sec. 440; 55 C.J. 372, Sec. 368.
Appellant paid the freight on the shipment, which shows that he assumed the duty of delivering the merchandise; he took the bill of lading in the name of Railway Express Agency, his agent, indicating that he assumed the duty of delivering the merchandise. The appellant did not use the more common methods of shipment, such as rail or freight, but took it upon himself to inquire into a method of shipment of merchandise that he himself called most unusual. The lower court sitting as court and jury found that he had assumed the duty of delivering the merchandise.
Evans-Terry Co. v. Liberty Mills, 127 Miss. 120, 89 So. 809; Merchants' Manufacturers' Bank of Ellisville v. Philip J. Toomer Lumber Co., 115 Miss. 647, 76 So. 565.
There was no acquiesence by appellees in the manner of shipment. Appellees by their acts never acquiesced in their agent's acts, first because appellant assumed and undertook delivery of the merchandise himself, and, second, because appellees immediately cancelled the contract in accordance with its conditions when they learned that the merchandise had not been shipped by November 25, 1945.
Argued orally by Hardy Lott, for appellant, and by R.C. McBee, for appellees.
Appellees, Jack P. Aldridge, Sr., and Jack P. Aldridge, Jr., doing a wholesale business as the Aldridge Company, a partnership, located at Greenwood, Mississippi, ordered from appellant Powell, located at Griffin, Georgia, a quantity of merchandise to be shipped from Griffin to Greenwood. The merchandise was duly shipped by Powell but was unduly delayed in transportation, and the Aldridge Company refused to accept it upon its arrival at Greenwood. Powell sued Aldridge for the purchase price of the goods, $618.75, plus $10.06 prepayment of freight by Powell, and interest on said sums. The case was decided by the lower court on an agreed statement of facts, trial by jury being waived. That court rendered judgment in favor of Aldridge, from which Powell appeals here.
The case turns upon whether or not the mode of transportation of the merchandise adopted by Powell was authorized by the contract of purchase. The question arises under this state of facts: the goods were purchased on open account to be shipped free on board at Griffin, the transportation charges to be paid by Aldridge. The stipulation of facts recites: "There was no agreement between plaintiff and defendants as to the manner or means by which said merchandise should be shipped from plaintiff in Georgia to defendants at Greenwood, Mississippi, and the defendants made no request that shipment be made by any particular carrier or class of carrier, that being left to the discretion of plaintiff."
Powell investigated as to the most economical and quickest method of transportation. He ascertained that transportation by motor freight would be considerably less than by express. He conferred with the Georgia Highway Express, Inc., operators of motor freight vehicles, and the Railway Express Agency, and was informed that the quickest and best method of transportation would be by motor truck from Griffin to Durant, and thence by railway express from Durant to Greenwood. The Georgia Highway Express, Inc. was not operating between Durant and Greenwood. However, another motor truck line was operating between those points but the Georgia Highway Express did not know that and informed Powell no such motor freight line was so operating. Powell delivered the merchandise to said Highway Express at Griffin on November 20th, to be thus transported to Greenwood. That company issued a bill of lading for the goods to be delivered to the Railway Express Agency at Durant, which bill of lading contains this notation: "Please forward to Aldridge Company, Greenwood, Mississippi." Powell prepaid the freight charges, $10.06, from Griffin to Durant. On the day of shipment Powell wrote the Railway Express Agency at Durant informing it of the shipment of goods over the line of the Highway Motor Express, enclosing a copy of the bill of lading, and also enclosing labels addressed to the Aldridge Company, Greenwood, Mississippi, to be placed upon the shipment of merchandise by the Railway Express Agency at Durant when it received the goods from the motor freight line. Powell on the same day mailed to Aldridge an invoice for the purchase price of the goods, setting out the terms of payment, which invoice included the $10.06 prepayment of freight by Powell, and which showed shipment by truck line to Durant, thence by railway express to Greenwood, and also wrote Aldridge a letter explaining the manner and mode of shipment of the merchandise and the reasons therefor. Aldridge received the letter and the invoice, and "made no reply thereto and expressed no objection to the manner and mode of shipment." On December 18, 1945, the goods not having arrived, Aldridge wrote Powell undertaking to cancel the contract, sending the Express Agent at Durant a copy of the letter. The shipment arrived at Durant "after" January 17, 1946, and was immediately transported by the Express Company from Durant to Greenwood, January 22, 1946. Aldridge refused to accept the shipment and the merchandise is now at Greenwood, subject to acceptance by Aldridge.
Ordinarily "A delivery of goods to a carrier on a sale f.o.b. at the place of shipment is a delivery to the buyer. It is also well-established that if the buyer directs the goods to be sent to him by carrier without designating any particular carrier, a delivery to the carrier selected by the seller, if proper care is used in his selection, is a delivery to the buyer to the same extent as though the buyer had himself selected the carrier." 46 A.J. 348, Section 172. In the Note appearing in 101 A.L.R. 292, the annotator states the rule to be that "Where the contract provides for a sale f.o.b. the point of shipment, the title is generally held to pass, in the absence of a contrary intention between the parties, at the time of the delivery of the goods for shipment at the point designated." The same rule is announced in Planters Oil Mill Mfg. Company v. Falls et al., (Miss.), 29 So. 786. See also Sethness Company v. Home Ade Bottling Company et al., 111 Miss. 151, 71 So. 308. Both parties admit this to be the general rule, but Aldridge says the facts of this case constitute an exception to that rule for these reasons:
(1) The fact that Powell prepaid the freight from Griffin, Georgia, to Durant, Mississippi, was proof of the intention of the seller to assume the duty of delivering the goods to Aldridge at Greenwood. He invokes the rule "A payment of freight by the seller is, however, evidence to show that the seller assumed the duty of delivering at the point of destination, and will prevent if such is the case, the delivery to the carrier from being considered a delivery to the buyer." While prepayment of the freight is evidence to show that the seller assumed the duty of delivery, such prepayment does not necessarily show that fact. "If the place of shipment is the place where, under the terms of the contract, delivery is to be made to the buyer, the fact that on delivery to the carrier the seller pays or guarantees the freight will not prevent the delivery from constituting a delivery to the buyer." 46 Am. Jur. 352, Section 176. The stipulation of facts sets out that Aldridge "should pay to the carrier the cost of shipping the merchandise from Griffin, Georgia, to Greenwood, Mississippi." The stipulation further recites that Powell prepaid the charges from Griffin to Durant "for the defendants." In addition to this, Powell wrote Aldridge that he had prepaid this freight and included it in his invoice as a charge against Aldridge, who made no objection because of such payment. Furthermore, the contract provided for delivery by Powell to the carrier, F.O.B. Griffin.
(2) Aldridge further says the delivery in this case was not a delivery to him because the bill of lading consigned the goods to the Railway Express Company at Durant and not to Aldridge. The bill of lading, while naming the Railway Express Agency, also contains this notation: "Please forward to Aldridge Co., Greenwood, Miss." Before the shipment was made Powell had conferred with the railway agents and the plan of shipment had been worked out and agreed upon, and it was the intention of the parties that the Express Agency was to immediately transport the goods from Durant to Greenwood. This was the only power or interest vested in the Express Agency as to the property. Powell, on the day of the delivery to the motor company at Griffin, wrote the Express Agency explaining the situation, outlining that its duty was only one of transportation, and the Express Agency undertook to perform that duty. And, as a matter of fact, it did actually perform the duty of such transportation and delivered the merchandise at Greenwood. Powell, on the day of shipment, forwarded to the Express Agency addressed labels to be placed upon the shipment from Durant to Greenwood. Looking through the form to the substance, and to the real intention of the parties, and the undertakings which they assumed, it is clear that this was a consignment of the goods to Aldridge and that such consignment vested in the Express Agency no right or interest whatever in the property except the duty of a carrier to further transport the property upon the delivery thereof to it.
Aldridge says that under the circumstances, he did not have the right to sue either carrier for the delay in transportation. We have said that we think the real consignee under the peculiar facts of this case was Aldridge. Both the motor company and the express company knew all of the facts in advance, and they advised this method of shipment. They knew the real consignee was the Aldridge Company. Powell sent Aldridge an invoice for the purchase price of the goods, showing conclusively that Aldridge had purchased the goods on account and that title thereto had vested in Aldridge. "According to the rule prevailing in most jurisdictions, where a person has possession of, and a special property in, goods, it seems that he may maintain an action against a common carrier for their loss, whether some other person has an interest in them or not, and, in such a case, it appears to be beyond question that a recovery by one such person will bar another action for the same cause. The provisions of the Interstate Commerce Act [49 U.S.C.A. Sec. 1 et seq.] authorizing an action by the holder of a negotiable or order bill of lading do not deprive the owner of the property of his right of action for damages for the loss or injury of the property." 9 Am. Jur. 932, Section 822. This was a straight bill of lading. In such case, the carrier is liable to the owner of the goods covered by such bill subject to existing rights of stoppage in transit. Title 49 U.S.C.A. Sec. 102.
(3) Aldridge seems to take the position that the shipper could not select two carriers. We know from common knowledge that it often happens that the shipper deals only with the initial carrier, and such initial carrier selects the subsequent carriers to finally deliver the goods. No convincing reason is given why the shipper could not in advance select the final carrier, especially where that is done, as here, with the knowledge and consent of all of the carriers. In addition to this, it is agreed Powell was vested with the duty and power to select the method of transportation. The only restriction on that power was the duty of the seller to use proper care in the selection. It is shown in this case that the shipper exercised the utmost good faith and used reasonable and proper care and precaution to protect the interest of the buyer. He thoroughly investigated the available methods of transportation, having in mind speed and economy in such transportation. He was assured that the method selected would result in a speedy delivery of the goods to its destination. The fact that the motor freight from Griffin, Georgia, to Durant, Mississippi, was only $10.06 indicates that the charge for transportation under the method selected was small. It might be added finally, in considering the contention that the shipper could not initially select two carriers, that the delay in transportation was with the initial carrier. It is not claimed the second carrier was negligent, therefore Aldridge suffered no injury because it was selected to make final delivery.
Reversed and judgment here for appellant Powell in the sum of $628.81, with interest thereon at 6% per annum from December 1, 1945.