
    Bradford, Patton & Co. vs. South Carolina Railroad Company.
    Action against the South Carolina Eailroad Company as joint contractors with the Western and Atlantic Eailroad Company and the Georgia Eailroad Company for damage to cotton shipped, in November, 1852, at Chattanooga, and transported over the three roads to Charleston. In 1849, the South Carolina Eailroad Company published a notice by which they made themselves liable as joint contractors with the other roads named. On the first October 1852, they published another notice, that they would be liable for damage to cotton “ after it came into their possession, but no further.” The receipt given by the Western and Atlantic Eailroad Company, at Chattanooga, stated, that the cotton “ was consigned to the Eailroad agent at Augusta,” for the plaintiffs in Charleston — “ Eoads liable for such injuries only as shall be established to have occurred while in their possession.” Held, that defendants were not liable as joint contractors, and non-suit ordered.
    BEEOEE O’NEALL, J., AT CHAELESTON, SEEING TEEM, 1856.
    The report of bis Honor, the presiding Judge, is as follows:
    “ This was an action brought to recover damage and loss on cotton, (say seven thousand one hundred and eighty-six pounds,) received per the defendant’s road, in Charleston. The action sought to charge the defendant as a joint contractor with the Western and Atlantic Eailroad and the Georgia Eailroad.
    “ On the 22d October 1849, an advertisement was published by the South Carolina Eailroad Company, that .cotton would be received at Chattanooga, and transported over the Western and Atlantic Eailroad, the Georgia Eailroad, and the South Carolina Eailroad, on a through ticket for sixty-five cents per one hundred pounds.
    “ On the 1st October, 1852, the South Carolina Eailroad Company published another notice, “ that from and after the date the company will receive at the Georgia Eailroad depot, in Augusta, all cotton, produce or merchandise, brought down by the Georgia and other railroads, and intended for the South Carolina Railroad,” “the freight and charges on which they will pay up to that point, and collect the whole freight and charges as agreed above, on delivery in Charleston.” “Duplicate receipts,” the advertisement stated, “would be given by the agent of the company, on the receipt of such cotton, produce or merchandise, at the Georgia Railroad depot, one of which will be given to the Georgia Railroad Company, and the other will be forwarded to the consignee in Charleston, and for all loss or damage that may occur to such cotton, produce or merchandise after it came into their possession, the South Garolina Railroad Company will he responsible, and will promptly pay, but no further.”
    
    
      “ The cotton, in this case, was delivered the 23d and 26th November, 1852, to the Western and Atlantic Railroad at Chattanooga, and receipts signed by the agent there, which stated that the cotton “ was consigned to the railroad agent at Augusta,” for the plaintiffs in. Charleston. Expenses to be collected at destination, one hundred and forty-two dollars and sixty-two cents. The receipt also stated, “to be transported, in turn, over the Western and Atlantic Railroad to Atlanta, and delivered to the agent of the Georgia Railroad under the following stipulations, viz: — Roads liable for such injuries only, as shall be established to have occurred while in their possession. Liability of roads, either for damages or loss, not to attach until the cotton is laden on the cars, and to cease on the unloading of the same at its destination.
    
    “ Parcels of the cotton were marked on each receipt, as in bad order.
    “ The cotton, when it reached Charleston was found to be damaged; the bales injured appeared to have been under water; the bales were coated with mud. The damage was ascertained by a survey to amount to, I think, seven hundred dollars and fifty-three cents.
    “The term ‘bad order,’ the witness said, applied to the outward condition of the bales, and was used capriciously, the cotton so marked being often found to be in good order.
    “Where the damage to the cotton occurred did not appear 5 neither did it appear that the South Carolina Bailroad, at Augusta gave duplicate receipts, as pointed out in their advertisement.
    “The defendant, on the closing of the plaintiffs’ case, moved for a non-suit, on the ground, that there was no joint contract proved. I thought it was best, that the case should go to the jury, so that the whole controversy might be ended by the decision of the Court of Appeals.
    “I thought then, and still think, there was not the slightest evidence of a joint contract. Indeed the receipts given at Chattanooga showed, without resorting to the defendant’s second advertisement, which came out in the defence, that the contract was several and not joint. .
    “The jury found for the plaintiffs the whole damages claimed, making no deduction for the cotton marked in the receipts, in ‘ bad order.' ”
    'The defendants appealed and now renewed their motion for a non suit, on the ground, that there was no proof of a joint contract; and failing in that motion, then for a new trial, on the grounds—
    1-. That there was no proof of a joint contract.
    "" 2. That the notice published by the defendants (1st October, 1852,) the alteration in the language, and legal effect of the receipts given at Chattanooga — the limitation by notice of the responsibility of each road to its own limits — the interposition of an intermediate consignee at Augusta — and the absence of all proof of a “through ticket,” or “freight in solido,” clearly established the contract to be several and not joint, and the jury should so have found.
    3. That the damages are excessive, no allowance being made for cotton found to have been damaged at the time of its shipment.
    4. That the verdict is contrary to the law and the evidence.
    Conner, for appellants.
    Memminger, contra.
   The opinion of the Court was delivered by

WhitNbr, J.

Although the motion for non-suit was refused on the circuit, we are informed by the Judge that the case was sent to the jury only that the controversy might be ended by the decision of this Court. By a recurrence to the brief, it will be seen this is not a case in which the party defendant is at all prejudiced by the verdict, hence the motion for a non-suit is very properly renewed.

The ground on which this motion rests will be first considered, whether there was proof of a joint contract on which the action can be sustained.

I shall not encumber the opinion I propose to submit with a transcript of the advertisements of 22nd October, 1849, and 1st October, 1852. The former is set forth in the case of Bradford vs. South Carolina Railroad, Company, 7 Rich. 201; — The latter in the brief of the present case. In the case cited a recovery was had, and sustained by this Court, against the defendant on a joint contract for damage to cotton shipped by the plaintiffs under the arrangement made by these three Bailroad Companies, as shown by their advertisement of 22d October, 1849, and receipts taken and forwarded according to tbe terms of that notice.

This case was elaborately argued and considered, and the grounds on which the judgment rested are very fully presented in the opinion delivered.

The complexities arising under this arrangement, soon suggested a change as indispensable, and hence, doubtless the subsequent advertisement of 1st October, 1852; and though this proceeded, as it appears, from the South Carolina Railroad Company alone, other facts brought to view in this case, disclose, that the other companies have taken like action. The terms of the latter notice very fully indicate the purpose of the South Carolina Railroad Company to disentangle itself at least from this arrangement, and to break up the previous mode of conducting their business. They thereby announce that henceforth they will receive at ■ the depot in Augusta all cotton, produce, or merchandise brought down by the Georgia or other Railroads, and intended for the South Carolina Railroad ; that they will pay the freight and charges to that point, and charging these expenses forward, will collect the whole freight and charges on delivery; that they will give duplicate receipts and be responsible for all loss and damage that may occur after the articles for transportation came into their possession, but no further. The elements of a joint contract, ascertained and brought to view in the judgment of the Court before referred to, in the former advertisement, are all withdrawn by the latter, consequently one making a shipment on the faith of any undertaking contained in the former notice, or of any information imparted thereby, would appeal in vain to the Court to hold this Company jointly liable, in consequence of either ingredient to be found in the latter notice.

But the motion for non-suit may not be authorized upon this view alone, as a question is suggested whether in point of fact a knowledge of the change in the mode of doing business had been brought home to the plaintiffs. However this might be, we are relieved from all embarrassment and misgiving on that subject. As a part of their case, the plaintiffs produced, as was necessary to an exact ascertainment of the thing to be done, the receipt given at Chattanooga, November 25, 1852. These contracts of affreightment are not only subsequent in point of time to the latter notice of the South Carolina Eailroad Company, but they speak a language not to be mistaken. They are explicit in all respects, and show very conclusively who were the original contracting parties, the duties to be performed, and the liabilities incurred. No construction to be given can include the present Company as in any way a party to these contracts. They furnish satisfactory evidence that the other Eailroad Companies had concurred in dissolving the tie by which they had been previously united with the South Carolina Eailroad Company, and that those with whom they dealt in the present instance recognised the dissolution, and entered into the contract with full knowledge. In our judgment there is no evidence on which to charge this Company in the present form of proceeding. In the former case, the evidence was in part written, and in part oral, and hence was properly submitted to the jury. In this case there is no dispute about the facts being entirely derived from the sources already enumerated. There is therefore no purpose to be answered by sending the case back, or by considering the other questions raised in the grounds for a new trial.

The defendant was entitled to the motion for non-suit on the circuit. The verdict is therefore set aside and a non-suit ordered,

O’Neall, Wardlaw, Withers, and Motro, JJ., concurred.

Motion granted.  