Richmond & Danville Railroad v. Bedell & Bowers

15 S.E. 676, 88 Ga. 591, 1892 Ga. LEXIS 72

• Court: Supreme Court of Georgia
• Decided: March 5, 1892
• Status: Published

Opinion

Judgment reversed.

Action for $2,000 damages, by Bedell & Bowers for the use of Orr & Hunter, against the railroad company, alleging: On September 16, 1889, defendant agreed to transport 1,000 bales of cotton from Columbus, Ga., to Liverpool, England, over its line of railroad and steamer Empire, agreeing by the terms of the contract that the steamer Empire would sail from West Point, Virginia, on the 5th day of October, 1889, at an agreed rate of $1.10 a hundred pounds as the rate of transportation from Columbus to Liverpool. In accordance with the contract petitioners delivered to defendant the cotton. They sold it to arrive in Liverpool, allowing the usual time consumed in transportation between West Point, Virginia, and Liverpool in England, and agreeing in said sale that the vessel would sail from West Point, Virginia, on the 5th day of October, 1889. The vessel did not leave West Point, Virginia, with the cotton on that day, but remained with it on board until the 12th day of October, 1889, and arrived in Liverpool seven days later than it should have arrived had it sailed from West Point on the 5th of October. When the cotton arrived in Liverpool the market had declined, and petitioners sustained a loss of $2,000 by reason of defendant’s failure to carry out its contract, and had to pay out and refund to Mellor & Eenton of Liverpool, England, the parties to whom they had sold the cotton, the difference in the price of it, caused by the delay of the railroad company in failing to ship it on the steamer Empire on the 5th of October, 1889, as the company had contracted to do.

The defendant moved to dismiss the ease, because the declaration set out no cause of action in the plaintiffs, but showed on its face that the cause of action was in Mellor & Eenton, they being the consignees and owners of the cotton and the only parties who could recover for the delay in shipment; and also moved to strike the names of Orr & Hunter as usees, on the ground that the declaration showed no right in them to recover. The court announced that the declaration showed no cause of action in the plaintiffs. The plaintiffs then offered to amend by adding, after the word “England” where it first occurs, the words : “for Bedell & Bowers for the use of Orr & Hunter”; and by alleging that the property herein set forth was the property of Orr & Hunter, and Bedell & Bowers acted as agents of Orr & Hunter in the shipment of the cotton and in making a contract for its shipment with the defendant; and by alleging that after the contract was made by Bedell & Bowers for the use of Orr & Hunter with the defendant, they sold the cotton to Mellor & Renton on condition that it should sail from "West Point, Virginia, on the 5th of October, 1889, and the legal title to the cotton remained in the plaintiffs until it arrived in Liverpool, when it was rejected by Mellor & Renton because the steamer Empire did not sail on the 5th of October, 1889, as the defendant had guaranteed to plaintiffs, and plaintiffs had by reason thereof guaranteed to Mellor & Renton, to the damage of plaintiffs $2,000. The defendant objected to said amendment, on the ground that there was nothing in the declaration to amend by, and that the amendment made a new and distinct cause oí action. The court overruled this objection, as well as the motion to dismiss, to which rulings the defendant excepted.

Calhoun, King & Spalding and John Peabody, for plaintiff in error. Louis F. Garrard, contra.