Griffin v. Edward Eiler Lumber Co.

delivered the opinion of the court.

This is an appeal from a judgment awarding the appellee damages because of the alleged1 failure of the appellant to deliver to the appellee lumber which it had purchased from him. The facts material to an understanding of the point on which our decision will turn are: That the appellee purchased at different times several carloads of lumber from the appellant to be shipped to it by rail at different points in the states of Ohio and Pennsylvania. The sales were f. o. b. the appellant’s *273mill which is located in Jones county on the Gulf, Mobile & Northern Railroad. The appellant being ready, willing and anxious to deliver the lumber, called repeatedly upon the railroad company for, and was each time refused, cars- in which to load the lumber. He notified the (appellee that he could not obtain the cars; but it did, and probably could have done, nothing to aid him to obtain them, and insisted that he ship the lumber as soon as he could obtain the cars. Several weeks after the appellant was due to ship the lumber, he returned the appellee’s orders for the lumber to it and sold the lumber to other parties. Afterwards this suit was instituted by the appellant the damages it claims to have sustained because of its failure to receive the lumber.

At the close of the evidence, the jury were instructed to-find for the appellee, and there was a verdict accordingly. This instruction should not have been giyen.

The appellee by directing the appellant to ship the lumber to him by rail, and the Gulf, Mobile & Northern Railroad Company being of necessity the initial carrier, thereby appointed that' railroad company as its agent to receive the lumber for transportation to it. Planters’ Oil Mill & Mfg. Co. v. Falls, 29 So. 786; 23 R. C. L. 1423. And when the railroad company declined to furnish the cars for the transportation of the lumber, after being requested to do so by the appellant, it thereby declined to receive the lumber, so that the appellant’s failure to deliver it was caused by no fault of his, but of the appellee’s agent; consequently the appellee and not the appellant, must bear the loss occasioned thereby.

The appellee’s contention is that because the appellant agreed to deliver the lumber f. o. b, his (the appellant’s) mill, that he .thereby assumed the obligation of furnishing the oars in which to transport it. The abbreviation “f. o. b.,’ ’ when used in contracts of sale stands for the words “free onboard,” and when the goods sold are to be ship*274ped to the buyer “mean that the subject! of the sale is to be loaded by the seller on the vehicle or conveyance for shipment without any expense on the part of the buyer’ ’ (23 B. C. L.j 1337), and 'does not of itself alone indicate whether .the seller or buyer is to' furnish the vehicle in which the subject of the sale is to1 be transported.

The vehicle in which property is to fee transported by rail must be, ex necessitate, a railroad freight car, and it is not only the custom of railroads to furnish the cars in which'it transports property, but it is under the duty to do so; consequently the cars in which the seller is to load the subject of a sale for shipment to the buyer by rail, in the absence of an agreement to the contrary, must be presumed to be cars to be furnished by the railroad company. So that the seller complies with his obligation to the buyer, in' so far as this feature of his contract is concerned, when he calls on the railroad company for the cars. The railroad company, under such a contract as hereinbefore set forth, acts as the agent or bailee of the buyer, and not of the seller. -,

The authorities are in conflict as to whether it is the duty of the seller or of the buyer to furnish the cars in which the subject of the sale, under a contract of this character, is,to-be transported; the cases holding that the duty is on the seller being of comparatively recent origin. 23 R. C. L. 1337; 35 Cyc. 197. Among* the cases holding that this duty is on the buyer is Graham v. United States, 231 U. S. 474, 34 Sup. Ct. 148, 58 L. Ed. 319.

Reversed and remanded.