Merchants & Farmers Bank v. Seaboard Air-Line Railway , 130 Ga. 224 ( 1908 )

Atkinson, J.

Twenty-five bales of cotton were shipped by rail, consigned' to the order of the consignor, with directions to notify a named person.. The bill of lading was attached to a draft on the person so to be notified, and sent through bank to the place of his residence. The draft- and bill of lading were, at his request, taken up by a second bank frpm the bank to which they were sent. The bill of lading was afterward» surrendered by the second bank to its customer, the person designated in the bill of lading to be notified. On presentation and delivery to it of the bill of lading by the person so to be notified,, the railroad company delivered to Mm twenty bales, and, failing to -find the other five bales, gave him a receipt or paper stating that the railroad company had delivered twenty bales and was still due five bales. In fact this was a mistake, as the person so to be notified had already been allowed to take and ship away the five bales; so that in reality he had received the entire twenty-five bales, though the five were thus delivered to him before he was entitled to receive them. Such person then indorsed and delivered to the second bank the receipt or written admission that five bales were still undelivered and due. Tile railroad company having failed to deliver such five, bales to the second bank on demand, the latter brought trover therefor. Held, that, upon such facts being shown by the evidence for the plaintiff, there was no error in. granting a nonsuit.

Argued July 1, 1907. Decided February 26, 1908.

Trover. Before Judge Littlejohn. Crisp superior court. September 19, 1906.

Hill & Royal and John R. L. Smith, for plaintiff. E. A. HaioTcins, for defendant.

Judgment affirmed.

All the Justices concur, except Bolden, J., who did not preside.