Cent. R. Co. of N.J. v. MacCartney

• Decision Date: 09 June 1902
• Parties: CENTRAL R. CO. OF NEW JERSEY v. MacCARTNEY et al.
• Court: New Jersey Supreme Court

52 A. 575

68 N.J.L. 165

CENTRAL R. CO. OF NEW JERSEY

v. MacCARTNEY et al.

Supreme Court of New Jersey.

June 9, 1902.

(Syllabus by the Court.)

Certiorari to court of common pleas, Somerset county.

Action by the Central Railroad Company of New Jersey against John F. MacCartney and Joseph A. McElroy. Judgment for plaintiff, and defendants bring certiorari. Reversed.

Argued February term, 1902, before FORT, HENDRICKSON, and PITNEY, JJ.

Pierre P. Garven, for plaintiff.

Willard P. Voorhees, for defendants.

PITNEY, J. This writ of certiorari brings before us for review a judgment of the court of common pleas rendered on appeal from a judgment of the court for the trial of small causes. The action was brought by the railroad company to recover an unpaid balance of transportation charges upon goods consigned and delivered to the defendants. The judgment in the common pleas was in favor of the plaintiff. The facts of the case, as certified to us, are as follows: From July, 1897, to July, 1898, the defendants MacCartney, McElroy & Co. were constructing a street railway between Bound Brook and Dunellen, in the county of Somerset. On July 2, 1898, they contracted with one Phelan, agent of the Seaboard Tie & Lumber Company of Virginia, to purchase from that company 3,000 railroad ties at a certain net price, delivered at Bound Brook, and 3,000 other ties at a certain net price, delivered at Dunellen. The ties at the time of purchase were at Brooklyn, in the state of New York. The court found that the shipper of the ties was the Seaboard Company; the ties being lightered from Brooklyn to Jersey City, and there placed on board the cars of the plaintiff. The Seaboard Company, through its agent, Phelan, contracted with one Saville who was in the lighterage business, and was also an agent of the plaintiff, to lighter the 6,000 ties from Brooklyn to the plaintiff's terminus at Jersey City for 3 cents each, amounting to $180 for the entire number of ties. This agreement was made prior to the shipment of the ties. Accordingly the ties were lightered by Saville to Jersey City, and were there loaded on the cars of plaintiff, and sent forward upon its railroad, consigned to the defendants,—3,000 to Bound Brook and 3,000 to Dunellen,—for which the plaintiff charged, besides the lighterage, the customary rate of freight, computed upon the weight of the ties. The court found the custom in the shipping and carrying of ties to be for the receiver (in this case, MacCartney, McElroy & Co., the defendants) to pay the freight charges in the first instance, and to deduct the amount thereof from the invoice rendered by the shipper for the ties, and to remit to the shipper the balance only. This was "the custom existing between shippers and carriers," and the court found that "the freight in this instance, by the custom among shippers and carriers, was to be deducted from the amount due for the ties, and the balance remitted to the seller." One lot of 3,000 ties was delivered to the defendants at Dunellen about July 9th, and at the same time the plaintiff's agent at that station delivered to the defendants a bill for freight, including lighterage and other charges thereon, amounting to $6.01. The remaining 3.000 'ties were delivered to defendants at Bound Brook about July 11th, and at the same time the agent of plaintiff at that station delivered to the defendants a bill for freight, lighterage, and other charges thereon, amounting to $94.26. About July 9, 1898, the defendants received from Phelan a bill, in his handwriting, made out in favor of the Seaboard Tie & Lumber Company, for the entire 6,000 ties, amounting at the agreed price to $1,534.99, upon which bill there were deducted freight charges of $86.01 and $94.26, leaving a balance clue of $1,354.72. On July 14th the defendants paid to the railroad company the Dunellen freight bill of $86.01, and on July 26th paid to the company the Bound Brook freight bill of $94.26. On August 12, 1898, the defendants paid to the Seaboard Tie & Lumber Company the balance due upon the bill for ties rendered by Phelan, amounting to $1,354.72. Each of these bills appears to have been paid in the ordinary course of business, and receipts were duly taken upon the several bills as rendered. Up to this time there was no knowledge on the part of defendants as to the rates of freight or lighterage agreed upon between their consignors and Saville or the plaintiffs: nor had they received any communication from Phelan or any other person as to such rates, or any notice on the subject, aside from what was conveyed to them by the freight bills as rendered by the Dunellen and Bound Brook station agents, confirmed by the credit entered by Phelan upon the bill of the Seaboard Company for the ties. In fact, the bill clerk in the freight office of the plaintiff at Jersey City, whose duty it was to make out waybills, committed an error in preparing the waybills for the ties in question; entering the lighterage on each bill at $9, instead of $90. From these waybills the agents at Dunellen and Bound Brook, respectively, made out the freight bills, which were delivered to the defendants with the ties, as above mentioned, and thereby perpetuated the bill clerk's errors. The Dunellen freight bill, instead of $80.01, should have been $107.01, and the Bound Brook bill, instead of $94.26, should have been $175.26. On each of these freight bills there was a column headed "Freight Unpaid," in which were plainly set down, in dollars and cents, the freight, the lighterage, and a charge for staking; and then in the final column at the right, under the head "To be Collected at Destination," was set down, in dollars and cents, the sum total of the former items. In other columns, at the left side of the sheet, were set down successively the name of the consignor, the place from which the goods were consigned, the description, "3,000 R. R. ties," the weight in pounds, and the rate at which the railroad freight charges were computed, which was not the rate per pound or per 100 or per 1,000 pounds, but the rate per ton of 2,000 pounds. In the column entitled "Rate" there was also, opposite an abbreviation of the word "lighterage," the figure "3," but nothing to show whether it was intended to mean 3 cents or $3. These bills, before they were paid, were checked by one of the defendants, but he did not observe the errors. The court below did not find, as matter of fact, that the freight bills contained upon their face anything sufficient to charge notice upon the defendants that there was an error in the computation; nor can we so find.

It appears from the facts as certified that the defendants had no understanding or communication with the railroad company regarding the freight rates. The contract was made solely between Phelan, as agent of the consignor, and Saville, as representative of the railroad company. The error in making up the charge for lighterage was discovered by the railroad company a month or six weeks after the ties had been delivered and the bills rendered. It was not discovered until after the defendants had paid the freight bills, and had also paid to the Seaboard Tie & Lumber Company the balance due for the ties. It appears that the railroad company paid Saville for the lighterage in two payments, "the first being $18, and afterwards the second being $162." It does not appear when these payments were made, but it is a necessary inference that the latter sum was paid to Saville after the discovery of the error in the freight bills. The railroad company having nouned the defeats of the error, and called upon them to pay the difference of $162 between what was charged and what should have been charged, and the defendants having declined to make such payment, this action was brought, and resulted in a judgment in favor of the plaintiff for $162, with interest. The question is, can this judgment be legally sustained, upon the facts as found by the trial court?

It will be observed that while the findings of fact are clear upon the point that the agreement for transportation was made wholly between the consignor and the plaintiff, and that defendants had no notice as to the rates or amounts to be charged until they actually received the ties, yet there is no finding either pro or con upon the question whether defendants had notice of and assented to the custom requiring transportation charges to be paid in the first instance by the consignee. It is found that such a custom existed "between shippers and carriers," but the defendants were neither. Nor does it appear that they had ever received ties or other freight on those terms before. The court also found that the freight in this instance, by the custom, was to be deducted by the purchasers from the bill for ties, and the balance remitted to the seller. Whether this was the arrangement made simply between the consignor and the plaintiff, or whether the defendants assented thereto, is not distinctly certified. What inference is properly to be drawn upon this point from the facts that are found is a matter of some doubt. We will therefore discuss the case in both aspects.

In the first place, therefore, supposing nothing had occurred to bind the defendants prior to their receipt of the ties, it is not perceived that they have made any promise or undertaking such as to subject them to liability in any amount beyond the sums specified upon the freight bills that were rendered at the delivery of the ties. The amounts thus specified they have already paid. In the absence of some agreement on the part of defendants, either express or implied, there is, in our opinion, nothing to support the present action. The mere existence of the relation of carrier and consignee is not enough to establish an obligation upon the latter to pay the transportation charges. Prima facie, the consignor of freight, who contracts with the carrier for its shipment, is liable to pay the...