D.S. Pate Lumber Co. v. Southern Ry. Co.

• Decision Date: 09 July 1917
• Docket Number: 19407
• Citation: 115 Miss. 402,76 So. 481
• Court: Mississippi Supreme Court
• Parties: D. S. PATE LUMBER CO. v. SOUTHERN RY. CO. IN MISSISSIPPPI

76 So. 481

115 Miss. 402

D. S. PATE LUMBER CO. v. SOUTHERN RY. CO. IN MISSISSIPPPI

No. 19407

Supreme Court of Mississippi

July 9, 1917

Division A

Appeal from the circuit court of Lowndes county, HON. T. B. CARROLL Judge.

Suit by the Southern Railway Company in Mississippi against D. S Pate Lumber Company. From a judgment for plaintiff, defendant appeals.

The railway company brought this action in the court below to recover freight charges alleged to be due on carload shipments of lumber from points in Alabama to points in Illinois and other states, via Columbus, Miss. where it was dressed in transit. The suit was brought more than three years and less than six years after the charges fell due; and defendant pleaded the three-year statute of limitation of Mississippi. The three-year statute (section 3099, Code Miss 1906) is as follows:

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

On delivery of each shipment to the planing mill at Columbus Miss., the lumber company was required to pay the freight charges at the local rate from its point of origin in Alabama to Columbus. After each shipment of lumber was dressed, it was redelivered to the railway company to be forwarded to its destination; and thereupon, according to a provision in the applicable interstate tariff, the through rate from the point of origin in Alabama to the point of ultimate destination in Illinois, or other state, was charged against the shipment, and the railway company was required to refund to the lumber company such proportion of the freight charges from point of origin in Alabama to Columbus, Miss., as the weight of the shipment forwarded from Columbus after being dressed bore to its weight when it was shipped to Columbus in the rough, less a charge for the dressing in transit privilege. It was that part of the tariff providing for this refund the misconstruction of which the railway company alleged resulted in over payments to the lumber company, and therefore in the undercharges for which the railway company sued. The refunds were made by drafts drawn by the agent of the railway company at Columbus in favor of D. S. Pate Lumber Company and indorsed and collected by the lumber company.

The lumber company itself made out the bills of lading on the usual forms upon forwarding the dressed shipments of lumber from Columbus; and they were signed both by the lumber company and the railway company. Neither the weights of the outbound shipments nor the rate were inserted in the bills of lading, but they contained the following:

"Received subject to classifications and tariffs in effect on the date of issue of this original bill of lading."

Copies of the bills of lading were introduced in evidence by the plaintiff, without objection, on the ground that they were copies; the originals having been delivered to the defendant lumber company, and not being available.

The writings which the court held to be insufficient to take the case out of the three-year statute of limitation were: (1) The bills of lading; (2) extracts from the tariffs showing the applicable rates and provisions, duly certified by the secretary of the Interstate Commerce Commission; (3) the waybills issued at the points of origin in Alabama covering the transportation of the rough lumber to Columbus, Miss., showing, among other things, the weight of the lumber and the rate at which freight was collected at Columbus for transportation from the points in Alabama to Columbus; (4) the way-bills issued by the railway company at Columbus, showing the weight of the shipments after being dressed when they were forwarded from Columbus to points in other states; (5) the drafts drawn by the railway company's agent at Columbus on its treasurer for the amounts refunded on the several shipments, properly indorsed by the lumber company, and paid by the railway company.

The lumber company was not a party to the waybills. They were issued by the railway company for the information of its own conductors and agents.

Judgment reversed.

W. C. Meek, for appellant.

The authorities all cited by plaintiff were not in point at all on their contention. There was no written contract at all in the case of any sort or kind at all. Simply a suit on an open account for the difference paid and no notes or writing of any kind whatever, no writing or promise in writing to pay or binding to do so in any way. Plaintiff cannot find any case in America or in England sustaining its contention, for there is none. (See Mississippi Code of 1906, sections 3099, 3100, 3115, 3118.) Yazoo & Mississippi Valley Railroad Company v. Willis; Foote v. Farmer, in 71 Mississippi Reports, on page 148 to 150; 49 Mississippi, page 480; Beck v. Beck, in 7 George, Mississippi Reports, page 72.

This is a suit on an open account pure and simple, and was barred in three years. A suit for rebates, refunds to recover same for the difference paid and what should have been paid by payments being made in checks or drafts makes no difference. This does not make it a contract in writing at all. 32 Mississippi, page 622; 33 Mississippi, page 41; 62 Mississippi, page 71; 12 Smedes & Marshall Reports, page 663; 24 Mississippi, pages 389 and 392; 28 Mississippi, page 361; 30 Mississippi, page 171; 14 Smedes & Marshall, page 52; 14 Smedes & Marshall, page 52; 55 Mississippi, page 52; 55 Mississippi, page 146.

Carl Fox, for appellee.

It is hardly necessary to cite authorities that there is no escape from the payment of freight charges at the rate prescribed by the tariffs. Louisville & Nashville R. R. Co. v. Maxwell, 237 U.S. 94 L. R. A. (N. S.) 1915E, 665; Atchinson, T. & S. F. R. Co. v. Bill (Okla.), 120 P. 987, 38 L. R. A. (N. S.) 351 and note; Louisville & Nashville R. R. Co. v. Mottley, 219 U.S. 567; Chicago & A. R. Co. v. Kirby, 225 U.S. 155; Armour Packing Co. v. United States, 209 U.S. 56; Texas & Pac. R. R. Co. v. Mugg, 202 U.S. 242; Schenberger v. Union P. R. Co. (Kan.), 113 P. 433, 33 L. R. A. (N. S.) 391, and note; New York, N. H. & H. R. R. Co. v. York & Whitney, 215 Mass. 36, 102 N.E. 366; Ga. R. Co. v. Creety, 5 Ga.App. 424, 63 S.E. 528; Central R. R. of N. J. v. Mauser, 241 Pa. 603, 88 A. 791, 49 L. R. A. (N. S.) 92, and the note to this case in L. R. A. (N. S.), which is very full; Carter Planing Mill v. N. O. M. & C. R. R. Co., Miss. , 72 So. 884; Yazoo & Miss. V. R. R. Co. v. Willis, 111 Miss. 303, 71 So. 563; Kan. City Sou. Ry. Co. v. Carl, 227 U.S. 639, 645; Louisville & Nashville R. R. Co. v. Maxwell, 237 U.S. 949; Georgia, Florida and Alabama Ry. Co. v. Blish Milling Co., 241 U.S. 190, 197; Phillips Co. v. Grand Trunk Western Ry. Co., 236 U.S. 662-667.

The only other question which we desire to discuss is the statute of limitations. The obligation of the Lumber Company is provable by the bills of lading issued for dressed lumber out of Columbus, and the drafts drawn by the agent of the Railway Company at Columbus on the Railway Company's assistant treasurer at Mobile payable to and endorsed by the Lumber Company or its agent. The Lumber Company itself made out these bills of lading and presented them to the Railway Company's agent for execution, and they were signed by the Lumer Company as well as by the Railway Company.

The defendant pleaded section 3099 of the Code of 1906, the three years' statute of limitations: "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...