Yazoo M.V.R. Co. v. Ussery , 157 Miss. 383 ( 1930 )

R.W. Ussery sued the railroad company for damages for failure to carry and deliver certain cotton shipped from a station on its line to the city of Clarksdale. The cotton was consigned to the Waddell Cotton Company by R.W. Ussery in the contract of shipment between the railroad and Ussery. The bill of lading appears to have been made out on the 13th day of October, and the cotton was loaded into the car on the 14th and moved from Evansville, Mississippi, towards Clarksdale, Mississippi, on the 15th, but was placed on a side track at Lula, Mississippi, by the railroad company, and was not delivered to Clarksdale until the 27th of October. It appears from the evidence that the Waddell Cotton Company had directed the railroad to deliver all cotton shipped to it to a compress in Clarksdale, and that the said compress, about the 15th of October, notified the railroad company that its track was full, and not to ship any more to it until further notice. The railroad, on receiving this notice from the compress company, put an embargo on cotton to Clarksdale, and set the car out at Lula awaiting orders on information as to shipment, and notified the Federal Compress Company of the fact that such car had been set out.

On the same day the cotton was shipped, Ussery, the plaintiff, sold a lot of cotton, including this cotton, to cotton buyers at Helena, Arkansas, at sixteen cents per pound, and called the Waddell Cotton Company and informed it of such sale. The consignment to the Waddell Cotton Company by Ussery was for the purposes of sale by or through the Waddell Cotton Company at the market price on that day. On receipt of the message, the Waddell Cotton Company undertook to locate the shipment of cotton, but could not do so, and made inquiry at the Clarksdale office of the railroad company, but was not given information as to where the cotton was. The railroad company had given no notice either to the Waddell Cotton Company or to Ussery, the shipper, of the embargo, and had asked no instructions as to its course of action under the circumstances. Further efforts were made by the plaintiff, who went to Clarksdale, and in connection with the Waddell Cotton Company tried to locate the cotton, but all efforts failed, and the sale failed because the cotton could not be delivered; the buyer at Helena having an order on which he desired to apply the cotton.

The case was tried in the county court where judgment was rendered for the plaintiff, and appealed to the circuit court where the judgment was affirmed, from which this appeal is prosecuted.

The cotton was afterwards sold in November following the shipment in October at a smaller price, and the suit is to recover the difference between the price obtained and the price for which the cotton was sold originally, but could not be delivered whereby the loss of sale was incurred. There was testimony to show that the crop for 1926, that involved in this suit, was an unusually large one, and that compresses could not handle the crop as fast as it was delivered to them, especially at the compress involved. It also appears to be the theory of the railroad that, as the cotton was to be shipped to the compress under instructions from the Waddell Cotton Company, notice to the compress was sufficient notice to the consignee to protect the railroad. As stated above, the compress was not a party to the contract; Ussery, the shipper, consigned the cotton to the Waddell Cotton Company as the shipper's agent in making a sale of it, while that was not shown on the bill of lading; the bill showed a consignment to the Waddell Cotton Company by Ussery. It further appeared from the record that neither the compress company, Waddell Cotton Company, nor Ussery was notified that team track delivery could be made, but the railroad seemed to proceed upon the theory that it was the duty of the consignee to request team track delivery if that was desired. The contract of shipment between the railroad company and Ussery did not call for a delivery to the compress, or to any particular track or place on the railroad other than at Clarksdale, Mississippi. The compress company not being a party to the contract, but the contract calling for a delivery to the Waddell Cotton Company, and the Waddell Cotton Company having requested the railroad company to deliver cotton consigned to it at the compress, it was the duty of the railroad company to notify the Waddell Cotton Company that it could not deliver at the compress, and request instructions from both the consignee and the consignor when the situation had developed; its duty under the contract was to deliver the cotton with reasonable promptness at Clarksdale, Mississippi. If it could not do that, then it should have given notice of its inability to do so, and request instructions; not having done so, it was liable for the loss occasioned by the delay. See Alabama V. Ry. Co. v. Brichetto, 72 Miss. 891, 18 So. 421; Alabama V.R. Co. v. Hayne,76 Miss. 538, 24 So. 907; Yazoo M.V.R.R. Co. v. Blum Co.,88 Miss. 180, 40 So. 748, 10 L.R.A. (N.S.) 432; Gulf Compress Co. v. A.G.S.R.R. Co., 100 Miss. 582, 56 So. 666.

We have examined the evidence in the case, and think it is sufficient to sustain the judgment rendered. Judgment of the court below will therefore be affirmed.

Affirmed.