Stamps & Co. v. Fruit Dispatch Co.

70 S.E. 81, 8 Ga. App. 503, 1911 Ga. App. LEXIS 10

• Court: Court of Appeals of Georgia
• Decided: January 17, 1911
• Docket: 2713
• Status: Published

Opinion

Hill, C. J.

(After stating the foregoing facts.)

1. It may be conceded that the testimony as to the order given by the plaintiff to the defendants over the telephone from Atlanta to Rome was, strictly speaking, hearsay, but certainly it is not of “the rankest kind of hearsay evidence,” as contended by the learned counsel for the plaintiffs in error. Taking the evidence all together, it is not without some probative value. It shows that the person testifying, — Gordon, the manager of the Fruit Dispatch Company, —recognized the voice of Stamps, the, senior member of the firm of Stamps & Company, who desired to give him an order, and that thereupon he called Carter, who was the bookkeeper and known by Stamps to be the bookkeeper, and Carter received from the telephone the order of Stamps & Company, and called it out to Gordon, who took it down as it was received and called out. Of course, the testimony of Carter, who received the message, was the best evidence of what was said to him over the telephone by Stamps, but it is wholly improbable and unreasonable that Carter should have called out to Gordon a different message from that which he received. The case of Planters Cotton Oil Co. v. Western Union Telegraph Co., 126 Ga. 621 (55 S. E. 495, 6 L. R. A. (N. S.) 1180), relied upon to show that this testimony was hearsay, is not exactly in point. That case was a suit for damages against the telegraph company, for the failure to deliver a telegraphic message, and the Supreme Court held that it was necessary for the plaintiff tó show that the message was in fact delivered for transmission, and that this was not accomplished by proof that the plaintiff’s agent, in an attempt to deliver the message for transmission, used the telephone, calling upon the telephone company for a connection with the office of the telegraph company, and, upon being answered by one supposed to be in the telegraph office, asked, “Is that the Western -Union Telegraph office?” and, upon being assured in the affirmative, repeated, to the person so answering, the message intended to be sent, “it not appearing that the agent of the plaintiff recognized the voice of the person whd answered him, as being the voice of one of the agents of the telegraph company, and it not being otherwise known to him or shown that the person to whom he was talking was the agent of the telegraph company.”

In the present case the evidence clearly shows that the plaintiff’s manager recognized the voice of the defendant, and that the dedefendant knew that he was talking to the agent of the plaintiff in Atlanta. But this is immaterial, in view of the fact that the defendant Stamps admits giving the order to the plaintiff for the mixed car-load of cocoanuts and bananas. He insists, however, that although he did give the order, it was on1 condition that the freight required to be paid on the mixed cap-load was to be the same rate of freight charged for car-loads. He admits receiving the cocoanuts and tendering the money for them according to his order, and that the bananas were shipped in the same car with the cocoanuts which he had ordered at the same time; and he testified that he declined to take them because of the alleged change in the freight rate, which he claims was a condition precedent to the making of th.e contract or the giving of the order. The plaintiff, as to this point, contends that nothing was said about freight rates, and that no guaranty as to freight rates was made when the order was given over the telephone. The plaintiff further contends, on this point, that the question of freight rates on shipments of fruit was already determined by written contract made with the defendants under which they had been operating for some years, and that none of its agents were authorized to change the terms and conditions of the contract as to freight rates, or in any other particular, except as provided in the cipher code book; that the defense urged, that the bookkeeper of the plaintiff had authorized the defendants to refuse to accept the bananas unless the railroad company would accept freight on the bananas according to car-load rates, was expressly unauthorized and prohibited by the terms of the code book, and that as this was an interstate shipment, the rate of freight was fixed by the schedule files and printed under the act of Congress known as the “Hepburn bill.” The question as to who shall pay the rate or as to where it shall be paid is determined by the written contract between the parties, under which all their business had theretofore been conducted. The objection urged against this contract that it was unilateral is not good. This is an executed contract, signed by both parties thereto, under which both parties had operated for years. The defendants in this case having made a written contract with the corporation in relation to uniform conditions governing transactions between them, and which was exhaustive on this subject, were bound by its express terms: “All bananas and fruit sold by the Dispatch Company delivered f. o. h. freight cars at the seaboard, with the exception of special sales provided for in clause No. 11 hereof.” It is not contended that there was any special sale in this case, and the contract further expressly denies to any officer, employee, or representative of the Dispatch Companj'’ the right or authoritjr to change any of its terms; declaring that only the president or the general manager, in writing, has such authority. Therefore, the effort of the bookkeeper of the Dispatch Company, if such effort was made as contended by the defendants, to change the terms of the contract by directing the defendants not to receive the bananas, was entirely without authority and nugatory. In other words, it seems clear, under the terms and conditions of the contract governing the shipment cf the fruit and the relations of the defendants with the plaintiff in reference thereto, that no authority appears in the evidence for any change in the conditions governing sales so as to authorize any guaranty as to freight rates, and that the defendants, having signed a written contract with the Fruit Dispatch Company, and pledging themselves to abide by these conditions and accept all the fruit, cocoanuts, and bananas delivered “f. o. b. at the seaboard,” were bound to receive the fruit at the point of destination and delivery, and the agent of the Dispatch Company had absolutely no right to advise the plaintiff to make any other disposition of the fruit after it arrived in the car at its destination in Rome. We think the evidence as a whole, under the law applicable thereto, demanded a verdict for the plaintiff, and that the court did not err in so directing. Judgment affirmed.