Mississippi Supreme Court, 1910

Malaga Packing Co. v. Threefoot

Malaga Packing Co. v. Threefoot
Mississippi Supreme Court · Decided March 15, 1910 · Anderson
97 Miss. 21; 52 So. 209

Malaga Packing Co. v. Threefoot

Opinion of the Court

Anderson, J.,

after stating the facts as above, delivered the opinion of the court.

Assuming everything to be true, favorable to appellees’ case, which the testimony tends to establish, still the court should have given a peremptory charge to the jury to return a verdict for the appellants, .except as to the item of $81.76, the alleged overcharge or difference in freight rates over the Southern Pacific and Santa Fé Railroads.

Undoubtedly the purchaser of goods, bought f. o-. b. cars at place of shipment, has the right to direct the route over which *26such goods shall be shipped. How were Threefoot Bros. & Co. damaged by a failure on the part of the Malaga Packing Company to comply with the instructions to route these goods over the Southern Pacific Railroad? It is clear from the testimony that the delay in transit was not caused by a violation of these instructions. The undisputed testimony shows that the goods were shipped at the time provided for in the contract, and that at that time it was impossible to procure cars from the Southern Pacific Pailroad, and the only way open to ship was over the-Santa Fé. There is not only no testimony in the case to show that the goods would have reached Meridian sooner via the-Southern Pacific, but, on the contrary, the uncontradicted testimony of appellants tends to show that, had the shipment been delayed until cars could be gotten over that road, the delay would have been longer than it was. There was no issue of fact for the jury to pass on, except the question of difference in freight. That question alone, on another trial, should be submitted to- the jury.

If Threefoot Bros. & Co. instructed the Malaga Packing Company to route these goods via the Southern Pacific Pailroad, and it failed to do it, and it is shown that the freight on the goods was more via the Santa Fé than via the Southern Pacific Pail-road, then they would be entitled to recover that difference.

Reversed and remanded.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.