Wisconsin Bridge & Iron Co. v. Illinois Terminal Co., 5920.

• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Writing for the Court: SPARKS, Circuit , and LINDLEY and BRIGGLE
• Citation: 88 F.2d 459
• Parties: WISCONSIN BRIDGE & IRON CO. v. ILLINOIS TERMINAL CO.
• Docket Number: No. 5920.,5920.
• Decision Date: 11 February 1937

88 F.2d 459 (1937)

WISCONSIN BRIDGE & IRON CO.
v.
ILLINOIS TERMINAL CO.

No. 5920.

Circuit Court of Appeals, Seventh Circuit.

February 11, 1937.

88 F.2d 460

Philip H. Porter, of Madison, Wis., and Luther M. Walter, of Chicago, Ill., for appellant.

George T. Buckingham and Arthur O. Graves, both of Chicago, Ill., for appellee.

Before SPARKS, Circuit Judge, and LINDLEY and BRIGGLE, District Judges.

SPARKS, Circuit Judge.

This case raises the question whether a defendant may be estopped from pleading the statute of limitations in defense of an action arising under the provisions of the Interstate Commerce Act which specifically provides that all actions at law by carriers subject to the act for recovery of their charges shall be begun within three years from the time the cause of action accrues, and not after.

Appellee filed suit to recover the balance alleged to be due for freight charges on a series of shipments of structural steel from North Milwaukee, Wisconsin, to Alton, Illinois, during the period from November 1, 1927, to March 13, 1928. The steel was shipped in unfinished state from Pittsburgh, Pennsylvania, and fabricated in transit at the plant of appellant at North Milwaukee, Wisconsin. Charges were prepaid to the latter point at the rate of 37¢ per hundred pounds, the rate for unfinished steel. Upon delivery of the fabricated steel at Alton, appellant paid for each shipment, computing the amount due on the basis of the rate from Pittsburgh to Alton, plus a charge of 2¢ per hundred for fabrication in transit at North Milwaukee, and crediting itself with the amount prepaid to that point, the total amounting to 43¢ per hundred, which appellant contended was the correct rate. Appellee, on the other hand, contended that it was entitled to a combination rate of 37¢ from Pittsburgh to North Milwaukee, and 25¢ from there to Alton. Delivery was made upon payment at the 43¢ rate, and immediately after the last shipment, on March 13, 1928, appellee presented its bill for the balance due on all shipments, demanding payment at the 62¢ rate. Appellant refused to pay the balance alleged to be due, and on June 14, 1928, appellee notified the Alton-St.Louis Bridge Company of appellant's indebtedness in the alleged amount of $9,342 for transportation charges on steel used in the construction of its bridge, and asked that the company take care of the claim before making final settlement with appellant. On June 20, 1928, appellant filed a complaint with the Interstate Commerce Commission, claiming that the rate sought to be enforced was in violation of the Interstate Commerce Act, and asking that the Commission fix a lawful rate for the shipments. Subsequently appellant notified appellee, that, if necessary, it was willing to file a bond for the amount in question, or other form of security, to avoid the necessity of paying the amount claimed to be due.

On February 6, 1930, the Commission rendered its decision regarding the rates which should be applied, and according to that decision, there was due appellee the sum of $810.50, instead of $9,342.66 demanded by it. Before payment by appellant

88 F.2d 461

of this undercharge, the Commission on its own motion reopened the case about June 13, 1930, and on November 15, 1930, issued a second report setting forth a very complicated formula for determining the correct rates to be charged for the shipments involved. According to this formula, there was found due the sum of $8,913.21. Following this...