ErviN, J.
The defendant, York-Shipley, asserts on its appeal by appropriate assignments of error that the pleadings of the plaintiffs do not state a cause of action against it for recovery of the freight charges, and that by reason thereof the court erred in concluding and adjudging that it is liable to plaintiffs for the same.
The pleadings of the plaintiffs are somewhat informal and do not contain any specific demand for judgment against the defendant, York-Shipley, for the amount of the freight charges. In consequence, they fall short of the standard of good pleading under G.S. 1-122, which clearly contemplates that a plaintiff should set forth in his complaint a demand for the relief to which he supposes himself entitled. Notwithstanding this statute, hosvever, the decisions have consistently followed the rule that under the code of civil procedure the relief to be granted in an action does not depend upon that asked for in the complaint, but upon whether the matters alleged and proved entitle the complaining party to the relief granted, and this is so in the absence of any prayer for relief.
Bryan v. Canady,
169 N. C. 579, 86 S. E. 584;
McNeill v. Hodges,
105 N. C. 52, 11 S. E. 265;
Knight v. Houghtalling,
85 N. C. 17. As
Chief Justice Merrimon
said in
Presson v. Boone,
108 N. C. 79, 12 S. E. 897: “When the cause of action appears sufficiently from the complaint, though informally alleged, and the case is tried upon its merits, the court ought to enter such judgment, as the pleadings, the admissions of fact, the findings of fact in some cases by the court or a referee, or the verdict of a jury upon issues submitted to them, wmrrant, without regard to an imperfect or improper demand for judgment in the complaint or other pleadings, or whether there be any formal demand therefor. The merits of the matter litigated and settled appearing, the law at once suggests the proper judgment to be given. While it is far better and very desirable that the pleadings shall be directly pertinent, precise and orderly, still when they can be upheld as sufficient, this must be done, if to do so works no injustice to a party. This is the spirit and purpose of the present method of civil procedure.”
These remarks apply with peculiar force to the case at bar. When the pleadings of the plaintiffs are construed with a proper degree of liberality, they sufficiently allege all facts necessary to show the right of the plaintiffs to recover the freight charges from York-Shipley, and contain a general prayer “for such relief as the plaintiffs are entitled to in the premises.” In addition, the record makes it plain that the plaintiffs are entitled to their judgment against York-Shipley for the freight charges. As a matter of fact, liability for such charges on the equipment repossessed by York-Shipley from Stoker Service may be predicated solely upon the express admission of York-Shipley that it is bound by the terms of the contract of 14 February, 1947, making it “responsible for the payment of all unpaid freight or transportation charges” on all of the property included in the twelve shipments “with the exception of the four items” retained by Stoker Service. Other considerations compel the adjudication that, York-Shipley is acountable to plaintiffs for the freight charges on these four items.
A bill of lading is said to be both a contract and a receipt. It is a receipt for the goods shipped, and a contract to transport and deliver the same as therein stipulated.
Aman v. Railroad,
179 N. C. 310, 102 S. E. 392; St.
Louis, I. M. & S. R. Co. v. Knight,
122 U. S. 79, 7 S. Ct. 1132, 30 L. Ed. 1077.
The shipments here moved in interstate commerce under uniform order bills of lading conforming to the Federal Bill of Lading Act and the regulations of the Interstate Commerce Commission. 49 U. S. C. A. 81-124. The contract embodied in each of these bills of lading provided in express terms that the consignor should “be liable for the freight and all other lawful charges,” unless it relieved itself of such liability by signing the non-recourse statement on the face of the bill directing the carrier not to make “delivery of this shipment without payment of freight and all other lawful charges.” York-Shipley did not sign the non-recourse statement on any of the bills of lading. It is well settled that “under these provisions if the non-recourse clause is not signed by the consignor, he remains liable to the carrier for all lawful charges.”
Illinois Steel Co. v. Baltimore & Ohio R. Co.,
320 U. S. 508, 64 S. Ct. 322, 88 L. Ed. 259. See, also, these cases:
Pennsylvania R. Co. v. Marcelleti,
256 Mich. 411, 240 N. W. 4, 78 A. L. R. 923;
Western Maryland R. Co. v. Cross,
96 W. Va. 666, 123 S. E. 572;
Grand Trunk Western R. Co. v. Makris,
142 Misc. 807, 255 N. Y. S. 443.
York-Shipley accepted full payment of the sale price of the four items kept by Stoker Service. In thus taking the benefits of the act of the plaintiffs in transporting and delivering these items to Stoker Service, York-Shipley estopped itself to deny liability to the plaintiffs for the freight charges on such four items as the consignor named in the bills of
lading covering sucb items.
Auto Co. v. Rudd,
176 N. C. 497, 97 S. E. 477;
Vick v. Wooten,
171 N. C. 121, 87 S. E. 989;
McCullers v. Cheatham,
163 N. C. 61, 79 S. E. 306.
This brings us to a consideration of the judgment on the counterclaim.
As
Air. Justice Field
so well said in
North Pennsylvania, Railroad Company v. Commercial National Bank of Chicago,
123 U. S. 727, 8 S. Ct. 266, 31 L. Ed. 287, “The duty of a common carrier is not merely to carry safely the goods entrusted to him, but also to deliver them to the party designated by the terms of the shipment, or to his order, at the place of destination.”
Each of these shipments moved in interstate commerce under an order bill of lading obligating the plaintiffs not to deliver the freight except upon “the surrender of the original order bill of lading properly indorsed” by York-Shipley. When the plaintiffs delivered the property to Stoker Service without the presentation and surrender of the bills of lading properly endorsed, they delivered the goods to one who was not lawfully entitled to the possession of them under the bills of lading and the relevant statutes, and became liable for any loss which the shipper, York-Shipley, sustained thereby. 49 U.S.C.A. 89-90;
Pere Marquette R. Co. v. French & Company,
254 U. S. 538, 41 S. Ct. 195, 65 L. Ed. 391;
Railroad v. Armfield,
189 N. C. 581, 127 S. E. 557. The liability of plaintiffs to York-Shipley is not affected in any degree by the fact that the bills of lading contained a direction for plaintiffs to notify Stoker Service of the arrival of the freight at Charlotte.
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ErviN, J.
The defendant, York-Shipley, asserts on its appeal by appropriate assignments of error that the pleadings of the plaintiffs do not state a cause of action against it for recovery of the freight charges, and that by reason thereof the court erred in concluding and adjudging that it is liable to plaintiffs for the same.
The pleadings of the plaintiffs are somewhat informal and do not contain any specific demand for judgment against the defendant, York-Shipley, for the amount of the freight charges. In consequence, they fall short of the standard of good pleading under G.S. 1-122, which clearly contemplates that a plaintiff should set forth in his complaint a demand for the relief to which he supposes himself entitled. Notwithstanding this statute, hosvever, the decisions have consistently followed the rule that under the code of civil procedure the relief to be granted in an action does not depend upon that asked for in the complaint, but upon whether the matters alleged and proved entitle the complaining party to the relief granted, and this is so in the absence of any prayer for relief.
Bryan v. Canady,
169 N. C. 579, 86 S. E. 584;
McNeill v. Hodges,
105 N. C. 52, 11 S. E. 265;
Knight v. Houghtalling,
85 N. C. 17. As
Chief Justice Merrimon
said in
Presson v. Boone,
108 N. C. 79, 12 S. E. 897: “When the cause of action appears sufficiently from the complaint, though informally alleged, and the case is tried upon its merits, the court ought to enter such judgment, as the pleadings, the admissions of fact, the findings of fact in some cases by the court or a referee, or the verdict of a jury upon issues submitted to them, wmrrant, without regard to an imperfect or improper demand for judgment in the complaint or other pleadings, or whether there be any formal demand therefor. The merits of the matter litigated and settled appearing, the law at once suggests the proper judgment to be given. While it is far better and very desirable that the pleadings shall be directly pertinent, precise and orderly, still when they can be upheld as sufficient, this must be done, if to do so works no injustice to a party. This is the spirit and purpose of the present method of civil procedure.”
These remarks apply with peculiar force to the case at bar. When the pleadings of the plaintiffs are construed with a proper degree of liberality, they sufficiently allege all facts necessary to show the right of the plaintiffs to recover the freight charges from York-Shipley, and contain a general prayer “for such relief as the plaintiffs are entitled to in the premises.” In addition, the record makes it plain that the plaintiffs are entitled to their judgment against York-Shipley for the freight charges. As a matter of fact, liability for such charges on the equipment repossessed by York-Shipley from Stoker Service may be predicated solely upon the express admission of York-Shipley that it is bound by the terms of the contract of 14 February, 1947, making it “responsible for the payment of all unpaid freight or transportation charges” on all of the property included in the twelve shipments “with the exception of the four items” retained by Stoker Service. Other considerations compel the adjudication that, York-Shipley is acountable to plaintiffs for the freight charges on these four items.
A bill of lading is said to be both a contract and a receipt. It is a receipt for the goods shipped, and a contract to transport and deliver the same as therein stipulated.
Aman v. Railroad,
179 N. C. 310, 102 S. E. 392; St.
Louis, I. M. & S. R. Co. v. Knight,
122 U. S. 79, 7 S. Ct. 1132, 30 L. Ed. 1077.
The shipments here moved in interstate commerce under uniform order bills of lading conforming to the Federal Bill of Lading Act and the regulations of the Interstate Commerce Commission. 49 U. S. C. A. 81-124. The contract embodied in each of these bills of lading provided in express terms that the consignor should “be liable for the freight and all other lawful charges,” unless it relieved itself of such liability by signing the non-recourse statement on the face of the bill directing the carrier not to make “delivery of this shipment without payment of freight and all other lawful charges.” York-Shipley did not sign the non-recourse statement on any of the bills of lading. It is well settled that “under these provisions if the non-recourse clause is not signed by the consignor, he remains liable to the carrier for all lawful charges.”
Illinois Steel Co. v. Baltimore & Ohio R. Co.,
320 U. S. 508, 64 S. Ct. 322, 88 L. Ed. 259. See, also, these cases:
Pennsylvania R. Co. v. Marcelleti,
256 Mich. 411, 240 N. W. 4, 78 A. L. R. 923;
Western Maryland R. Co. v. Cross,
96 W. Va. 666, 123 S. E. 572;
Grand Trunk Western R. Co. v. Makris,
142 Misc. 807, 255 N. Y. S. 443.
York-Shipley accepted full payment of the sale price of the four items kept by Stoker Service. In thus taking the benefits of the act of the plaintiffs in transporting and delivering these items to Stoker Service, York-Shipley estopped itself to deny liability to the plaintiffs for the freight charges on such four items as the consignor named in the bills of
lading covering sucb items.
Auto Co. v. Rudd,
176 N. C. 497, 97 S. E. 477;
Vick v. Wooten,
171 N. C. 121, 87 S. E. 989;
McCullers v. Cheatham,
163 N. C. 61, 79 S. E. 306.
This brings us to a consideration of the judgment on the counterclaim.
As
Air. Justice Field
so well said in
North Pennsylvania, Railroad Company v. Commercial National Bank of Chicago,
123 U. S. 727, 8 S. Ct. 266, 31 L. Ed. 287, “The duty of a common carrier is not merely to carry safely the goods entrusted to him, but also to deliver them to the party designated by the terms of the shipment, or to his order, at the place of destination.”
Each of these shipments moved in interstate commerce under an order bill of lading obligating the plaintiffs not to deliver the freight except upon “the surrender of the original order bill of lading properly indorsed” by York-Shipley. When the plaintiffs delivered the property to Stoker Service without the presentation and surrender of the bills of lading properly endorsed, they delivered the goods to one who was not lawfully entitled to the possession of them under the bills of lading and the relevant statutes, and became liable for any loss which the shipper, York-Shipley, sustained thereby. 49 U.S.C.A. 89-90;
Pere Marquette R. Co. v. French & Company,
254 U. S. 538, 41 S. Ct. 195, 65 L. Ed. 391;
Railroad v. Armfield,
189 N. C. 581, 127 S. E. 557. The liability of plaintiffs to York-Shipley is not affected in any degree by the fact that the bills of lading contained a direction for plaintiffs to notify Stoker Service of the arrival of the freight at Charlotte.
Killingsworth v. Railroad,
171 N. C. 47, 87 S. E. 947;
Sloan v. Railroad,
126 N. C. 487, 36 S. E. 21;
King v. Barbarin,
161 C. C. A. 311, 249 F. 303.
If York-Shipley had been so minded, it could have refrained from taking any steps to avoid or minimize the loss resulting from the wrongful delivery of its goods, and treated such delivery as a conversion of such goods by plaintiffs, and sued plaintiffs for the full value of the goods at the time and place of the conversion.
Killingsworth v. Railroad, supra;
9 Am. Jur., Carriers, section 581; 13 C. J. S., section 174.
But York-Shipley did not elect to sue plaintiffs for conversion. Instead of so doing, it minimized the loss resulting from the wrongful delivery by accepting the sale price of a relatively small part of the goods from the person improperly receiving the shipments and by repossessing the remainder of the goods at an expense of $805.47, and obtained judgment against plaintiffs on its counterclaim for the amount of the outlay as damages proximately flowdng from breaches of the contracts of the plaintiffs to require production and surrender of the order bills of lading properly endorsed before delivering the goods.
The plaintiffs attack the validity of the judgment rendered in favor of York-Shipley on the counterclaim on the ground that Yoi-k-Shipley
bad ratified tbe wrongful delivery and precluded itself thereby from suing them therefor by making the agreement of 14 February, 1947, with Stoker Service and by accepting the advantages accruing to it thereunder.
Undoubtedly, a misdelivery of freight by a carrier may be ratified by the shipper so as to relieve the carrier of liability. 9 Am. Jur., Carriers, section 557. The rule as to ratification is thus stated in 10 C. J., Carriers, section 881: “An unauthorized delivery may be ratified by the party entitled to delivery of the goods; and, where such delivery is ratified with a full knowledge of the facts, the carrier is thereby exempted from further liability. But, in order to release a carrier from liability for wrongful delivery on the ground of ratification, it must plainly appear that the ratification was intended with full knowledge of all material facts. What constitutes a ratification depends on the facts of each particular case and may be shown by express words or implied from words, acts, or silence. The burden of showing ratification rests on the carriel'. If the facts relating to ratification are in dispute or if reasonable minds might draw different conclusions from the facts, the question of ratification is for the jury.”
Here, the court deemed the evidence relating to ratification to be conflicting, and made a finding of fact to the effect that the wrongful delivery of the property reclaimed by York-Shipley had not been ratified. This finding was fully supported by the testimony indicating that York-Shipley was merely seeking to avoid or minimize the loss resulting from the wrongful acts of the plaintiffs.
Arrington v. Railroad,
51 N. C. 68, 72 Am. D. 559;
Cooper v. Express Co.,
165 N. C. 538, 81 S. E. 743;
Lipman Refrigerator Co. v. Baltimore & Ohio Warehouse Co.,
20 Ohio App. 523, 152 N. E. 686;
Alderman Bros. Co. v. New York, N. H. & H. R. Co.,
102 Conn. 461, 129 A. 47.
The plaintiffs assert, however, that the facts relating to this phase of the case are undisputed, and engender the inescapable legal conclusion that a ratification did occur. This contention is untenable, even if one accepts the premise that the evidence concerning ratification is without conflict. This case involves twelve separate and unrelated shipments under twelve separate and unrelated bills of lading. Manifestly, the act of a shipper in ratifying the wrongful delivery of specified items of freight consigned under one or more bills of lading neither compels nor justifies an inference that he thereby intended to ratify other wrongful deliveries of other property transported under other bills of lading. Moreover, we think the legal result would have been the same on the present record if all of the equipment had been shipped under one bill of lading for the reason that the mere acceptance by the owners of payment for part of the goods delivered to the wrong person does not operate as a waiver of the wrongful delivery of the remainder.
Lester v. Delaware
L. & W. R. Co.,
92 Hun. 342, 36 N. Y. S. 907;
Olvany v. Nyamco
Asso
ciates,
154 Misc. 807, 278 N. Y. S. 242.
The case at bar is distinguishable from
Brown v. Vandalia R. Co.,
163 Ill. App. 473, and
Blowers v. Canadian Pac. R. Co.,
155 F. 935, where it was properly held that a shipper ratifies a wrongful delivery by accepting from the person to whom delivery is made payment of the entire price of the goods, or part payment with a promise to pay the balance.
The contention of York-Shipley that the court erred in refusing to adjudge the plaintiffs liable to it for an additional $943.85 is without merit. The court found that this alleged loss “did not result from the acts of the plaintiffs.” This finding has the same force and effect as the verdict of a jury. McIntosh: North Carolina Practice and Procedure in Civil Cases, section 516.
For the reasons given, the trial and judgment in the court below will be upheld.
Judgment affirmed on appeal of plaintiffs.
Judgment affirmed on appeal of defendant, York-Shipley, Inc.