[Southern Railway Co. v. Lockwood Mfg. Co.] Ala. 399. And the carrier is entitled to additional compensation for its services as warehouseman.-Gulf City Construction Company v. L. & N. R. R. Co. supra. It would seem, if the carrier can make an additional charge when it stores the goods in its warehouse and have a lien for such charge, upon like principle and for the same reasons, it may make an additional charge and have a lien therefor when the goods remain in its cars after its liability as a common carrier has ceased.—Miller v. Georgia R. R. & Banking Co. supra; Miller v. Mansfield, 112 Mass. 260;New Orleans & North Eastern R. R. Co. v. George, (Miss.) 35 South. 193. In Miller v. Georgia R. R. & Banking Co., it was said, "We do not think it material, as affecting the right to make a charge of this character, that the goods remain in the cars, instead of being put into a warehouse." And in the case of New Orleans & North Eastern R. R. Co. v. George, supra, it is said, "There is no force in the argument which concedes the right of the carrier to make demurrage charges, but contends that the goods must be delivered, and then the carrier sue for the amount. This course would give the dishonest and insolvent unfair advantage, and would breed a multiplicity of suits." The foregoing authorities fully sustain the doctrine of the right of the carrier to a lien upon the goods transported for demurrage charges. Coming then to the main question in the case before us, was the placing of the car of lumber on the "team track" of the Railway Company for the purpose of being unloaded by the consignee, such an absolute and unqualified delivery of the lumber into the possession of the consignee as would cut off any future right of lien for legitimate charges for car service, or demurrage, subsequently accruing? We think not. The delivery of the possession of the lumber, in the manner in which it was made, and under all the conditions and circumstances, was a qualified delivery. The delivery was conditioned upon the lumber being unloaded from the car within a fixed time, and upon a failure of the consignee to comply with this condition additional rights [Southern Railway Co. v. Lockwood Mfg. Co.] and liabilities between the parties arose. The right of the consignee's possession of the lumber was accompanied with the duty on his part to remove the same from the car. It would hardly be contended that the placing of the car for the purpose of unloading terminated all liability of the Railway Company both as carrier and warehouseman while the lumber yet remained on its car. Upon the same principle that a railroad company, when its relation becomes that of a warehouseman, has a lien upon goods for storage charges, it has a lien upon goods for demurrage, or car service. A contrary doctrine would defeat the purpose of the rule of the Car Service Association adopted by the Railroads, and which was made in the interest of commerce generally, and for the benefit of shippers as well as carriers. The indefinite detention of cars by shippers would naturally tend to impair the ability of the carrier to meet the demands of commerce, and lessen the facility of transportation. The case of Lane v. Old Colony & Fall River R. R. Co. 14 Gray (Mass.) 143, is somewhat similar in principle to the case in hand. In that case the railroad company had placed a shipment of coal in a bin on the company's ground to be removed by the consignee, and after a part had been hauled away, the consignees refused to pay the freight and storage charges. It was held, that the railroad company still had a lien on the coal which had not been hauled away for such charges. We think in principle there can be no difference between a delivery of the coal in a bin to be taken and hauled away by the consignee, and a delivery of the lumber on the car on the Railway Company's "team track" for a like purpose. Our conclusion is, that a lien for the subsequent charges for car service attached to the lumber in favor of the Railway Company. The evidence being without conflict, the trial court erred in refusing the general charge [Gentry v. Lawley.] requested by the defendant. And for this error the judg ment will be reversed and the cause remanded. Reversed and remanded. MCCLELLAN, C. J., HARALSON and TYSON, J.J., concurring. Gentry v. Lawley. Bill in Equity to Redeem Certain Lands. 1. Decree in chancery suit; when shown to be final.-Where a bill is filed by a mortgagor to redeem certain lands from one alleged to be the mortgagee, and the defendant files an answer and cross bill, claiming that he was not in possession of said lands as a mortgagee, but as a purchaser, and prays in his cross bill to be allowed to retain possession of the land as a purchaser, a decree which, after reciting that the cause was submitted on pleading and proof, then recites, "on consideration thereof, it is ordered, adjudged and decreed" that the demurrer to the cross bill is overruled, that the cross complainant is not entitled to relief, and the cross bill is dismissed; and that the complainants are entitled to relief and to redeem the property; and there then follows directions for the making of an accounting before the register, such a decree is a final decree, which will support an appeal. APPEAL from the Chancery Court of Bibb. The facts of this case are sufficiently stated in the opinion. The appeal is prosecuted by the defendant in the original bill, from a decree, and the rendition of this decree is assigned as error. The decree itself is copied in the opinion. HOGUE, LAVENDER & FULLER, for appellant. LOGAN & VANDERGRAAFF, contra. [Gentry v. Lawley.] SIMPSON, J.-This was a bill filed by appellee for the purpose of redeeming certain lands, held by a mortgagee alleged to be in possession of the lands thereunder. To this bill the appellant filed an answer and cross-bill, claiming that he had not gone into possession under the mortgage, but under a parol contract, by which appellee sold him the land, the consideration being, the mortgage debt, a release to appellee of the personal property cov ered by the mortgage, and ten dollars in money which was paid to appellee, when appellant was placed in possession of the land. The question is raised, in the outset, by counsel for appellee, that the decree, in the case, is not such a final decree as an appeal can be taken from. The decree is as follows: "This cause coming on to be heard, was submitted on pleading and proof as noted, and on demurrer to the cross bill. On consideration thereof it is ordered, adjudged and decreed, 1st; that the demurrers to cross bill be, and the same hereby are, overruled. 2nd; That the cross complainants are not entitled to relief, and that the cross-bill is dismissed. 3rd; That complainants are entitled to relief, and to redeem the property on paying whatever may be due, and to an accounting from B. M. Gentry as mortgagee in possession. It is, therefore, further ordered and decreed that it be referred to the register of this court to ascertain and report (a) an account of what is due to the defendant for principal and interest on said mortgage. (b), An account of the rents and profits of the said premises, or value of any saw logs cut from lands, which have been received by the said defendant, or by any other person, by his order or for his use, or which might, but for his willful default, have been so received; and that what shall appear to be due to the plaintiff in taking an account of rents and profits, be deducted from what shall appear to be due to the defendant for principal and interest." Direction is then given about how the report shall be had, and the usual expression reserving further orders. [Gentry v. Lawley.] While this court has declared that, when a reference is necessary, the better practice is to render an interlocutory decree merely expressive of the opinion formed as to the rights of the parties, etc., Jones v. Wilson, 54 Ala. 50, yet it has not declared that all decrees where a reference is made are interlocutory. The result of the decision is, 1st; As to the form of the decree, in order to make a final decree, it is not sufficient to state that "it seems to the court that the plaintiff is entitled to relief," or to express the "opinion," that he is, or that "it appears to the court," etc. It must be a clear judicial determination of the fact.-Vice v. Littlejohn, 109 Ala. 294;Trump v. McDonnell, 112 Ala. 256; Ex parte Gist, 119 Ala. 463; Richardson v. Peagler, 111 Ala. 478. 2nd; As to the matter of the decree, in order to be final, it must settle all the equities between the parties.-Garner v. Prewitt, 32 Ala. 13; Marks v. Semple, 111 Ala. 637. We think the decree in this case comes up to the requirements, and is a final decree. The assignments of error simply raise the question as to whether the court erred in granting to the appellee the relief prayed in his original bill, and as to whether it erred in refusing to appellant the relief prayed in his cross-bill and in dismissing said cross-bill. If the appellant's contention is sustained, to-wit; that he purchased the land in question from appellee, in consideration of the satisfaction of the mortgage, and other considerations mentioned, then, as a matter of course the prayer of the appellee's bill could not be granted, and the appellant would be entitled to the relief prayed in the cross-bill. Appellee claims that the contract for the sale of the land cannot be enforced because the property was his homestead, and could not be sold except in compliance with statutory requirements. But there is no allegation in the pleading that said property was his homestead, so that even if the proof on the subject were satisfactory, (which it is not), it would be proof without allegation, which is as insufficient as allegation without proof. |