Opinion
36127.
DECIDED APRIL 9, 1956.
Action on contract. Before Judge Wright. Fulton Civil Court. January 27, 1956.
Paul M. Daniell, Allan Watkins, for plaintiff in error.
Edwin W. Ross, Edgar A. Neely, Jr., R. J. Reynolds, Jr., contra.
The trial court did not err in sustaining the general demurrer to the petition.
DECIDED APRIL 9, 1956.
W. B. Henderson, trading as Henderson Gas Plumbing Company, brought an action against National Carloading Corporation and Benton Rapid Express, Incorporated, to recover the value of a box of "Expansion Joints" shipped to the plaintiff by Solar Aircraft Company of San Diego, California. In addition to the value of the "Expansion Joints," the petition shows the following facts: The date of the shipment was May 29, 1953. A delivery of other items covered by the same contract of lading was made on or about June 20, 1953. On or about October 9, 1953, the defendant Benton Rapid Express, Incorporated, sought to deliver to the plaintiff the "Expansion Joints" short on the delivery made on or about June 20, 1953; but the plaintiff mistakenly refused to accept them inasmuch as he had ordered replacement "Expansion Joints" from Solar Aircraft Company, which were delivered on or about October 16, 1953. On or about April 1, 1954, the plaintiff demanded from the defendants the box of "Expansion Joints," and was advised on or about May 4, 1954, that the "Expansion Joints" had been salvaged (sold) by the defendants. On or about July 26, 1954, the plaintiff filed his claim with the defendant Benton Rapid Express, Incorporated, and was advised on or about August 11, 1954, that the claim had been declined. On or about March 21, 1955 the plaintiff returned the claim to the defendants for a reconsideration. The petition then alleges that the defendants in salvaging (selling) the "Expansion Joints" failed to comply with section 4 (b), (d), and (e) of the contract of lading, which was set forth as an exhibit to the petition.
The defendant National Carloading Corporation filed various general and special demurrers to the petition. On the hearing of the demurrers the trial judge sustained ground 2 of the general demurrer and entered a judgment which reads in part as follows: "2. Defendants' general demurrer on the ground that the petition affirmatively shows that the petitioner is not entitled to maintain this action for failure to comply with the condition precedent to recovery provided for in section 2 (b) of the aforesaid bill of lading, providing for the filing of a written notice within the time specified therein, is hereby sustained and the said cause is hereby dismissed." To this judgment the plaintiff excepts.
1. Although the plaintiff argues in his brief that the trial court erred in refusing to permit him to amend his petition as requested, in the event that the trial court should decide to sustain the general demurrer filed by the defendant National Carloading Corporation, the record does not disclose that any request was made, nor does the bill of exceptions except to any such refusal on the part of the trial judge. Accordingly, this argument does not present any question for decision.
2. The only other question presented is whether or not a claim was filed in writing within the time provided by section 2 (b) of the contract of lading. This section reads in part as follows: "As a condition precedent to recovery claims must be filed in writing . . . within nine months after delivery of the property . . . or, in case of failure to make delivery, then within nine months after a reasonable time for delivery has elapsed . . ."
Both the plaintiff and the defendants agree that this provision of the contract of lading is binding.
According to the petition, the first claim was filed on July 26, 1954, or 13 months and 6 days after the other property covered by the same contract of lading was delivered. The petition also shows that the "Expansion Joints" were tendered to the plaintiff on or about October 9, 1953, or 9 months and 17 days before the claim was filed. The petition does not show that such claim was made in writing; however, even assuming, but not deciding, that such claim was made in writing, the claim was filed after the time for filing a claim had expired, whether the nine months began to run on the day the balance of the shipment was delivered to the plaintiff, or on the day the tender of the box short on the original delivery was made. In no event could the date on which the plaintiff was advised that the property had been sold be used to start the running of the nine-month period provided for in section 2 (b) of the contract of lading. Therefore, the trial court did not err in sustaining the general demurrer to the petition and in dismissing the action.
Judgment affirmed. Felton, C. J., and Quillian, J., concur.