Davis v. Akron Feed & Milling Co.
| Citation | 296 F. 675 |
| Decision Date | 06 March 1924 |
| Docket Number | 3952. |
| Parties | DAVIS, Director General of Railroads, v. AKRON FEED & MILLING CO. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Edward A. Foote, of Cleveland, Ohio (Cook, McGowan, Foote, Bushnell & Lamb and Willard W. Wilson, all of Cleveland, Ohio, on the brief), for plaintiff in error.
Thompson Hine & Flory, of Cleveland, Ohio, for defendant in error.
Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges.
In October, 1919, a shipment of wheat originated at Isabel Kan., and another shipment originated at Pretty Prairie, in the same state. These two shipments of wheat were milled at Hutchinson, Kan., and reshipped by a connecting carrier of the Erie Railroad, under bill of lading dated November 19 1919, consigned to the order of Larabee Flour Mills, at Kansas City, Kan. It was thereafter reconsigned to E.P Mueller, at Chicago, and by Mueller was reconsigned to the Akron Feed & Milling Company, Akron, Ohio.
The Akron Feed & Milling Company agreed to pay Mueller for this shipment $1,050 f.o.b. cars at Akron. A bill of lading was forwarded to an Akron bank. When the consignment reached Akron, the Erie Railroad Company represented to the Akron Feed & Milling Company that all freight chargeable against this shipment up to the time of its arrival in Chicago had been paid. The scheduled rate from Chicago, including war tax, amounted to $64.38, of which amount the milling company paid, at the time the bill was presented to it by the railway company, the sum of $53.46, and later paid to the Erie Railroad Company the balance of this freight, amounting to $10.92. The milling company, relying upon the representations made by the railway company that all freight upon this consignment had been paid to Chicago accepted the consignment, paid the freight charges demanded, and then paid to the Akron bank upon the bill of lading the sum of $1,050 less the freight charges of $64.38.
No contention is made that the milling company did not pay the full and correct freight charges upon this shipment, including the war tax, from Chicago to Akron, but the railway company later discovered that the freight charges, amounting, with war tax, to $128.59, from Kansas City to Chicago, had not been paid, and thereupon brought an action against the Akron Feed & Milling Company to recover that sum.
For a defense to this action the milling company claims that it relied, and had a right to rely, upon the representation made to it by the railway company that all freight had been paid upon this shipment to Chicago, where it had purchased this merchandise from E. P. Mueller, and had paid E. P. Mueller in full the agreed price of this merchandise, less the freight from Chicago. It further appears by the stipulation of counsel that:
'Neither the Akron Feed & Milling Company, nor plaintiff, the Erie Railroad, were able to collect this undercharge from the consignor, notwithstanding attempts were made by both plaintiff and defendant.'
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Southern Pacific Company v. United States, Civ. A. No. 1611
...To the same effect are many cases both from the federal courts5 and from the state courts.6 A few cases following Davis v. Akron Feed & Milling Co., 6 Cir., 296 F. 675, hold that a private consignee can invoke the doctrine of estoppel against a carrier and prevent the collection of freight ......
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Missouri Pacific Railroad Co. v. National Milling Co.
...and that consequently the equity of the matter lies with it, thus foreclosing double payment. Defendant cites Davis v. Akron Feed & Milling Co., 296 F. 675 (6 Cir. 1924), and Southern Pacific Co. v. Valley Frosted Foods Co., 178 Pa.Super. 217, (1955), 116 A.2d The issue is not without diffi......
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Interstate Motor Freight System, Inc. v. Wright Brokerage Co.
...to the carrier. The leading case for the result of allowing a defense of estoppel under these circumstances is Davis v. Akron Feed and Milling Co., 296 F. 675 (6th Cir. 1924). For many years the Davis case was accompanied by only a relatively few other cases, principally: Southern Ry. Co. v......
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Consolidated Freightways Corp. of Delaware v. Eddy
...442 F.2d 56 (7th Cir. 1971); Missouri Pacific Railroad Co. v. National Milling Co., 409 F.2d 882 (3d Cir. 1969); Davis v. Akron Feed & Fuel Co., 296 F. 675 (6th Cir. 1924). The court in the Admiral Corp. case explained the distinction as 'The undercharge cases are thus consistent with and, ......