Stefani v. Southern Pacific Co.

THE COURT.

Appeal from a judgment rendered in favor of plaintiff for the value of a car of grapes shipped over the lines of defendant.

The complaint alleged in paragraph II thereof “that on or about the 5th day of September, 1926, and at all times herein mentioned since that date, plaintiff was the owner of and entitled to the use and possession of those certain goods and property in the next succeeding paragraph described”, and by paragraph III that “on or about the 5 th day of September, 1926, at Borden, Madera county, California, the L. Ravano Fruit Company delivered to the defendant for shipment those certain goods and property of the plaintiff, to-wit, 1049 lugs of Zinfandel black juice grapes”. It was further alleged that on the same date defendant issued and delivered to plaintiff its original straight bill of lading therefor, designating plaintiff as the owner and Butte, Montana, as the destination thereof; that plaintiff on that date became and ever since has been the owner and holder for value of the bill of lading; that defendant, a common carrier, received the grapes, to be

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by it safely carried to the above destination, but failed and neglected to do so, all to plaintiff’s damage in the sum of $1769.62.

.Defendant denied the allegations of paragraph II, and alleged that the L. Eavano Fruit Co. was the owner of the grapes, that plaintiff had no interest therein and' was never entitled to the use or possession thereof. The allegations of paragraph III were admitted. The other allegations were denied except that defendant admitted the receipt of the grapes, alleging the same, however, to have been received from the above-named fruit company for delivery to it at the above-named destination, or to such other place or person as the fruit company might designate; and that while the grapes were in transit and before their arrival at Butte the fruit company instructed defendant to divert the same to Marcello Fruit Company at New York City, which was accordingly done.

The court found that on September 5, 1926, at Borden, California, one Victor Bressen purchased the grapes from the L. Eavano Fruit

Company;

that on the same date plaintiff purchased the same from Bressen and deposited the sum of $1169.62' to the latter’s account in the Metals Bank and Trust Company of Butte; that on the same date at Borden the fruit company last named delivered to Bressen its receipted invoice for the grapes and loaded the same in defendant’s car, whereupon the latter issued and delivered its straight bill of lading into Bressen’s possession; that plaintiff was named therein as consignee, Butte, Montana, as the destination of the shipment, and the 1,049 lugs of Zinfandel grapes as the merchandise to be delivered to plaintiff as consignee; that on the same day Bressen forwarded to plaintiff the receipted invoice with the bill of lading, and that plaintiff on or about the said date became and ever since has been the owner and holder for value without notice of the bill of lading, and that defendant failed and refused to deliver the grapes to plaintiff at Butte or any other place. It was further found that the reasonable market value of the grapes at their destination was $1769.62, and that demand for its payment was refused. As conclusions therefrom the court found that defendant had failed to establish a lawful excuse for its failure to deliver,