Merchants & Miners Transportation Co. v. Moore & Co. , 124 Ga. 482 ( 1905 )

Cobb, P. J.

The foregoing statement of facts makes out a clear case of conversion upon the part of the Merchants and Miners Transportation Company. That it acted in good faith in delivering the oats in accordance with the direction of its principal, the Baltimore and Ohio Bailroad Company, is no defense against the true owner of the property. “An agent who, for and in behalf of his principal, takes the property of another without the latter’s consent is, as to him, guilty of a conversion, although, being ignorant of the true owner’s title, the agent may have acted in perfect good faith; and such agent may be sued in trover for the property, even after his delivery of it to his principal.” Miller v. Wilson, 98 Ga. 567; approved in Flannery v. Harley, 117 Ga. 485.

Nor do we think in such a case a demand is necessary before the institution of suit. In Miller v. Wilson, supra, Chief Justice Simmons, says: “When an actual conversion is shown, no demand is necessary, evidence of demand and refusal being required only as evidence of a conversion.” See also Rushin v. Tharpe, 88 Ga. 782.

But it is contended that a demand is necessary in the case at bar, by reason of a stipulation in the bill of lading that “claims for loss or damage must be made in writing to the agent at the point of delivery promptly after the arrival of the property; and if delayed for more than thirty days after delivery of the property, or after due time for the delivery'thereof, no carrier hereunder shall be liable in any event.” A suit in trover is not an action for loss or damage to property, but an action for conversion of property. The conversion on the part of the carrier is an abandonment by it of its contract of shipment. It can not repudiate this contract and then hold the shipper to its terms. Further, we do not think the terms of the contract cover such an eventuality. It was never contemplated by either party that a claim for damages should be presented to the carrier for the result of its voluntary act. It was the purpose of the contract to provide a procedure for the adjustment of damage suffered by reason of some occurence for which the carrier was liable, but which it did not wilfully bring about. There would be no reason in demanding that a claim be presented for damages flowing from an act which by its very commission denies any right in the claimant. For the same reasons, a stipulation in the bill of lading that the amount of any loss or damage shall be computed at the value of the property at the time and place of shipment is not binding upon the plaintiffs in this action. See Sav. Ry. Co. v. Sloat, 93 Ga. 803; G. S. & F. Ry. Co. v. Johnson, 121 Ga. 233; Central Ry. Co. v. Chicago Portrait Co., 122 Ga. 11.

The plaintiffs elected to demand a verdict for damages alone, and were entitled to the highest proved value of the property converted, between the date of conversion and the date of the trial. Civil Code, §3917. See Holmes v. Langston, 110 Ga. 866, and cit. The verdict rendered gives this amount to the plaintiffs, after deducting what would have been the freight charges.

No sufficient reason has been shown for reversing the judgment, and it is accordingly

Affirmed.

All the Justices concur.