Montgomery & Eufaula Railway Company v. Kolb. MONTGOMERY & EUFAULA RAILWAY COMPANY V. KOLB. (73 Ala. 396.) Carrier - delivery to custom rules. A deposit of cotton in a street along the side of the platform of a railroad depot, or in the railroad cotton-yard, for shipment, in pursuance of a custom or usage adopted or sanctioned by the depot agent, may amount to a delivery to the railroad company, although no receipt is given by the agent to the shipper, and such usage or custom is contrary to the established regulations of the company, known to the shipper, and no notice thereof is traced to the superintendent or managing agent of the company.* A CTION for goods intrusted for carriage. The head-note shows the point. The plaintiff had judgment below. John D. Roquemore, for appellant. G. L. Comer, contra. STONE, J. When the law has declared certain express rules for the government of men, or when persons enter into express stipulations, expressing the terms on which they enter into contracts, it is a reasonable rule, subject only to a few exceptions, that neither custom nor usage will be allowed to dispense with such legal requirements or such express stipulations. Barlow v. Lambert, 28 Ala. 704. "Where by local custom or usage, provincialisms and technicalities of science and commerce, and perhaps some others, have acquired a known, fixed and definite meaning, different from their ordinary import; or where such technicalities, unexplained, are susceptible of two or more plain and reasonable constructions, it is certainly competent to prove the existence of such custom, as a means of showing the sense in which the contracting parties intended to be understood." Barlow v. Lambert,28 Ala. 704. See also the many authorities referred to in the briefs of counsel. Speaking of usage of trade, Mr. Greenleaf, Ev., vol. 2, § 251, says: "It is sufficient if it be established, known, certain, uniform, reasonable, and not contrary to law. Their true office is to interpret the otherwise indeterminate intentions of parties, and to ascertain the * See South, etc., R. Co. v. Wood (71 Ala. 215), 46 Am. Rep. 309. * H Montgomery & Eufaula Railway Company v. Kolb. nature and extent of their contracts, arising not from express stipulation, but from mere implications and presumptions, and acts of a doubtful and equivocal character; and to fix and explain the meaning of words and expressions of doubtful or various senses. On this principle, the usage or habit of trade or conduct of an individual, which is known to the person who deals with him, may be given in evidence to prove what was the contract between them." This latter principle may be illustrated by a familiar incident in every-day life. A customer is in the habit of dealing with his merchant, and having his purchases sent home, and his bills run from one to two months before payment is demanded or expected; and this too at cash rates. He selects a given article of merchandise, and orders a given number of yards to be measured off. In this there is not a word said about price, about delivery, or about the time of payment. Yet there is implied in these few simple and indeterminate words and acts, that the goods are sold at their customary cash market value, that they will be delivered at the purchaser's residence without undue delay, and that payment will not be expected, until the end of the customary indulgence. So, in Boon v. Steamboat Belfast, 40 Ala. 184, quoting from Judge STORY, this court said: "The true and appropriate office of a usage or custom is, to interpret the otherwise indeterminate intentions of parties, and to ascertain the nature and extent of their contracts, arising not from express stipulations, but from mere implications and presumptions, and acts of a doubtful or equivocal character." In September, 1877, Raoul, superintendent of the South Western Railroad Company, of Georgia --which company was also operat⚫ing the appellant railroad company issued a circular, headed "Notice to cotton shippers and instructions to agents." This notice or circular was again issued at the opening of the season of 1880-1881, and was forwarded to, and received by the agent at Eufaula, and a copy was furnished to the appellees, Kolb & Hardaway. Kolb & Hardaway were cotton buyers at Eufaula, did a considerable business, and made many shipments of cotton by the appellant railroad company. This suit was brought to recover the value of nine bales of cotton, alleged to have been delivered to the railroad company at Eufaula, to be transported to, and delivered at Montgomery, and never delivered. The case turned on the question of delivery to the railroad company at Eufaula; for it is not. Montgomery & Eufaula Railway Company v. Kolb. pretended the railroad company forwarded the cotton, or delivered it at Montgomery. In fact neither the railroad company nor its agent at Eufaula gave any receipt for the cotton alleged to have been lost. There was no express contract fixing the terms. We have carefully examined the circular, made a part of the bill of exceptions, and we think its regulations and directions are reasonable. They are alike beneficial to the shipper and carrier. They commend themselves by their wise and systematic provisions, intended to secure prompt shipment, to prevent confusion of goods, and to render disputes about delivery for shipment almost impossible. It is not pretended that those regulations were conformed to in this case. The claim is, that the railroad company departed from its own regulations, and thus established a usage different from them, which was conformed to in this case. The bill of exceptions recites that "the evidence further tended to show that shortly after the printed notice to cotton shippers and instructions to agents' were issued, they were disregarded by both shippers and defendant's agent at Eufaula, and that it became a general custom and usage to deliver and receive cotton at the depot in Eufaula in disregard of such printed notice and instructions. The evidence on this subject was very conflicting, the agent himself testifying that he never received cotton for shipment in non-compliance with said instructions, except in a few instances made necessary by what he thought an exigency and as a matter of accommodation to the shipper." In another place the bill of exceptions states: "The proof further showed that some of the cotton brought to the cotton-yard of defendant by the plaintiffs for delivery to the defendant for shipment was not placed by plaintiffs on a certain plank platform of defendant's, upon which defendant required all cotton bales to be placed before it would receive and receipt for them, but was placed in a street running along the side of such platform ; but testimony was introduced by said plaintiffs, going to show that the station agent did take cotton bales from this street and receipt for them." In another place in setting out testimony it is said, "that plaintiffs frequently and persistently violated these rules and regulations of the defendant company as contained in such notice. to cotton shippers and instructions to agents,' against the protest of the station agent at Eufaula." It is nowhere shown that the station agent ever did refuse to receive and ship cotton that was Montgomery & Eufaula Railway Company v. Kolb. delivered for shipment, because not delivered in conformity with the printed rules and regulations. It is contended for appellant that inasmuch as the station agent had positive instructions from the superintendent not to receive or receipt for cotton to be shipped, unless delivered in accordance with the printed directions, and inasmuch as the shippers in this case had notice of these regulations by receiving a copy thereof, then, not having received the agent's receipt for the cotton, they have shown no legal delivery to the railroad and cannot recover. Such is undoubtedly the law if the testimony stopped here. Against this it is replied for appellees, that the railroad company, through its agent at Eufaula, has permitted a usage to grow up which dispenses with the regulations prescribed in the circular, and constitutes the act done in this case a legal delivery to the railway company. To this it is rejoined that no knowledge of such violation of the regulations is traced to Raoul, the superintendent, and hence the railroad company is not bound by such usage if proven to have been established. We think this is too narrow a view of the question. Railroads usually have extended lines, and along those lines are many depots' or stations at which the business of receiving and delivering freight is carried on. The trading public, as a rule, have no access to the superintendent, and can only know the station agents with whom they have dealings. They can have no control of the business regulations of the railroad, and have no power of appointment or removal. Whatever regulation, custom or usage such station agent adopts, or permits to be adopted, the public must either conform to or will feel itself justified in conforming to. The rules observed by shippers in their general transactions, if continuous or frequent, although not universal, grow into a usage which would authorize others to treat it as the proper rule and as an element of the contract of affreightment. This constitutes the very spirit, the intent of a usage of trade. It supplies by implication an unexpressed fact, or link in the chain of facts, which go to make up and prove the contract. And we think it no answer to this that no testimony was offered of this violation of instructions on the part of the agent, tending to trace notice of it to the superintendent. It was the duty of the corporation to keep itself informed of the manner in which its station agents conducted their agency, their habit, or usage in the matter of receiving and delivering freight; and we VOL. XLIX-8 Montgomery & Eufaula Railway Company v. Kolb. think it would be highly detrimental to the public service if we were to permit a railroad corporation to escape responsibility for the consequences of a usage which its own trusted agents had permitted to grow up and be acted upon. Piedmont & Arlington Ins. Co. v. Young, 58 Ala. 476; s. c., 29 Am. Rep. 770. There was sufficient testimony to justify the court below in submitting to the jury the inquiry whether or not there was a usage at the Eufaul depot of the defendant railroad company to dispense with the regulations prescribed in the superintendent's circular. It will be remembered there was testimony tending to show there had been a frequent if not general disregard of those regulations commencing soon after they were issued, a period of more than three years before the loss complained of in this case. That is certainly a sufficient time to establish a usage of trade. True, the testimony was in conflict as to the frequency and extent of the violation. The question, which phase of the evidence was the true one, was for the jury. As we have said, the question in this case is, was there, or was there not a delivery of the cotton to the railroad. In Hutchinson on Carriers, § 90, is this language: "While it is the undoubted general rule that the delivery, to bind the carrier, must be made either to him or to some one with authority from him or who may be rightly presumed to have such authority, it is not to be understood that it is not subject to such conventional arrangements between the parties as they may choose to make in regard to the mode of delivery, or that it may not be varied by usage or by a particular course of dealing between them. If therefore the parties agree that the goods may be deposited for transportation at any particular place, and without any express notice to the carrier, such deposit will be a sufficient delivery; and proof of a constant and habitual practice and usage of the carrier to receive the goods when they are deposited for him in a particular place, without special notice of such deposit, is sufficient to show a public offer by the carrier to receive goods in that mode, and to constitute an agreement between the parties by which the goods, when so deposited, shall be considered as delivered to him without any further notice. Such a practice and usage are tantamount to an open declaration, a public advertisement by the carrier, that such a delivery should of itself be deemed an acceptance by him; and to permit him to set up, against those who had been thereby induced to omit |