Cheney v. Boston & M.R.R.
| Decision Date | 01 June 1917 |
| Citation | 227 Mass. 336,116 N.E. 411 |
| Parties | CHENEY v. BOSTON & M. R. R. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Middlesex County; Patrick M. Keating, Judge.
Action by Frank P. Cheney against the Boston & Maine Railroad. A verdict was directed for plaintiff, and defendant brings exceptions. Exceptions sustained.
Wm. D. Regan, of Lowell, for plaintiff.
Trull & Wier and J. M. O'Donoghue, all of Lowell, for defendant.
This is an action brought to recover demurrage charges paid by the plaintiff to the defendant. These charges were made on interstate shipments of lumber delivered by the defendant to the plaintiff in the city of Lowell. The ground on which the plaintiff seeks to recover is that the charges were in violation of the tariff filed by the defendant with the Interstate Commerce Commission.
During the time in question the plaintiff was a manufacturer of wooden boxes with a factory in Lowell. The lumber in question was delivered by the railroad on a private track owned by the plaintiff which ran from the defendant's main tracks into his factory. The plaintiff's contention was that as matter of construction of the defendant railroad's tariff demurrage could not be charged on cars of lumber delivered on this private track until the cars had actually been placed upon that track or there had been a ‘constructive placement’ on the track by giving what is called in the tariff a ‘notice of placement.’ It appeared that on arrival of the cars of lumber in the railroad yard of the defendant in Lowell the defendant gave the plaintiff a notice which was headed ‘Arrival Notice’ and charged demurrage on giving that notice. It was the contention of the plaintiff that this notice did not operate as a ‘constructive placement’ within the provisions of the tariff. The defendant's main contention was that it was in substance such a notice. In addition the defendant raised other questions as to the true construction of the tariff.
The case was sent to an auditor and after a full hearing upon these issues he decided in favor of the plaintiff. The auditor's report ended with a finding that the defendant owed the plaintiff $1,123 with interest from November 22, 1913. When the case came on for trial the auditor's report was put in evidence and both parties rested. The defendant then asked for seven rulings, all of which had to do with matters of construction of the provisions of the defendant's tariff...
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...Pac. 163. Compare Hardaway v. Southern Ry. Co., 90 S. C. 475, 73 S. E. 1020, Ann. Cas. 1913D, 266. See, contra, Cheney v. Boston & Maine R. R., 227 Mass. 336, 116 N. E. 411. Compare Poor v. Western Union Tel. Co., 196 Mo. App. 557, 564, 196 S. W. 28. In the following cases, where the court ......
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