Illinois Central Railroad v. Jackson Oil & Refining Co.

Sykes, J.,

delivered the opinion of the court.

This suit originated in a justice of the peace court in Hinds county, Miss., upon the following statement of facts: On February 5, 1910, appellee (plaintiff in the court below) shipped a carload of .cotton seed from Bogue Chitto, consigned to itself at Jackson, Miss. In transit there was lost an amount of said seed whose market value is agreed to be seventy-five dollars. It is further agreed that, if the plaintiff in the court below is entitled to recover any damages whatever, then the amount of recovery is to be seventy-five dollars. The original bill . of lading issued to the appellee by the appellant at the point of origin of the shipment in part reads as follows:

“Received, subject to the classifications and tariffs in effect on the date of issue of this original bill of lading, ... the property described below, consigned to Jackson Refining1 Oil Company, Jackson, Miss. Car. initial, C. & N. W. No. 73328. Description of articles: C/L Cotton seed”

—signed by the agent of the carrier. More than three years elapsed after the shortage was discovered and be *324 fore the filing of this suit. Suit was filed within six years after the issuing of the bill of lading. Appellant pleaded the bar of the three-year statute of limitations. The only question to be decided by this court is whether the three or the six year statute of limitations applies to a suit of this character. It is the contention of the appellant in this case that the carrier contracted to carry a carload of cotton seed. A part thereof became lost. Therefore the obligation upon its part to pay for the same is implied in law, and the demand is barred by the three-year statute.

Section 3009 of the Code of 1906 provides as follows:

“Actions on an open account or stated account not acknowledged in writing, signed by the debtor, and on any unwritten contract, express or implied, shall be commejiced within three years next after the cause of such action accrued, and not after.”

This is not a suit, based on an open account, or stated • account not acknowledged in writing, signed by the debt- or. Neither is it a suit on an unwritten contract, express or implied. The suit is founded upon an express contract to transport a carload of cotton seed. It makes no difference whether the bill of lading stated the number of pounds constituting the carload or not. In the case of Washington v. Soria, 73 Miss. 665 , 19 So. 485 , 55 Am. St. Rep. 555 , on this question the court said:

“The action is not upon a contract provable by parol, but is one provable by a writing. Whether the action which might have been brought at law could have been on the promise contained in the deed, treating it as the deed of the defendant because of his acceptance, and the estoppel operating upon him to deny it to contain his written contract, as the decided weight of authority holds may be done, or whether, as is held by the Massachusetts courts, no action could have been maintained on the deed, but the plaintiff must have sued upon the promise implied by law from the acceptance of the deed by the defendant, is, we think, immaterial. In either event the promise of *325 the defendant, whether it be express or implied, is to perform a contract, the terms of which are written, and not unwritten. The promise to pay is implied by law, bnt it'is a promise to perform a written, and not an unwritten, contract.”

In the case of Fowlkes v. Lea, in 84 Miss, on page 515, 36 So. on page 1037 (68 L. R. A. 925, 2 Ann. Cas. 466), this court says:

“The principle with which we are concerned is this, sharply stated: Is the recital that the grantor conveyed the land to the grantee in consideration of four hundred dollars a sufficient statement of the terms of the contract to make the statute of limitations relating to written promises the only one applicable? On this precise proposition we quote the following authorities above referred to. In the case of Ames v. Moir & Co. [ 27 Ill. App. 88 ] there was an action of assumpsit for goods delivered on an instrument containing the following recital: ‘Contract. Chicago, June 9, 1870. I have this day bought of Robert Moir & Co., one hundred (100) barrels highwines, “iron bound,” at one dollar and seven cents ($1.07) per proof gallon. [Signed] Wilson Ames.’ After reviewing several cases, the court says: ‘There may be a contract in writting, although it contains no express promise to pay the consideration. Strickly speaking, there is no such express promise in Ames’ contract. But when a state of facts is acknowledged in writing to exist, which imports an obligation to pay, the law implies the obligation, but the contract is not thereby reduced to parol. Ashley v. Vischer, 24 Cal. 322 , 85 Am. Dec. 65 . Such a contract is found in the passbook.of a depositor in a bank. The entries in the book are not express promises to pay, but the law implies such promises, and the liability thereunder has been held not to be barred in five years. Jassoy v. Horn, 64 Ill. 379 .’ It is clear here that there was no express promise on Ames’ part to pay, but a state of facts was acknowledged in writing to exist, which imported the obligation; but, although the law implied the *326 obligation, the contract was held to be a contract in writing with respect to tbe statute of limitations applicable. This ease covers our case perfectly. There is no express promise on the part of the grantee to pay four hundred dollars, but there is a statement of facts — to wit, that the land was sold for the consideration of four hundred dollars — which statement of facts is acknowledged in writing, and from which statement of facts the law imports the obligation to pay.”

See Musgrove v. Jackson, 59 Miss. 390 ; Madison County v. Collier, 79 Miss. 220 , 30 So. 610 ; Lindenmayer v. Gunst, 70 Miss. 639 . 13 So. 252 , 35 Am. St. Rep. 685 . Section 3097 of the Code of 1906 provides:

“All actions for which no other period of limitation is prescribed shall be commenced within six years next after the cause of such action accrued, and not after.” In this case, by the terms of the bill of lading, the railroad expressly agreed to transport and deliver a carload of seed to the appellee at the point of destination. This promise is in writing, and is the foundation of the action. Section 3097 of the Code of 1906, above quoted, is the one which governs the time within which this suit could be brought.

The judgment is therefore affirmed.

Affirmed.