Erie R. Co. v. Wanaque Lumber Co.

• Decision Date: 02 March 1908
• Citation: 75 N.J.L. 878,69 A. 168
• Parties: ERIE R. CO. v. WANAQUE LUMBER CO.
• Court: New Jersey Supreme Court

69 A. 168

75 N.J.L. 878

ERIE R. CO.

v. WANAQUE LUMBER CO.

Court of Errors and Appeals of New Jersey.

March 2, 1908.

(Syllabus by the Court.)

Error to Supreme Court.

Action by the Erie Railroad Company against the Wanaque Lumber Company. Judgment for defendant, and plaintiff brings error. Reversed.

Collins & Corbin, for plaintiff in error.

PARKER, J. This an action by a carrier to recover from the defendant lumber company freight charges and demurrage on four separate car loads of merchandise, and demurrage alone on the fifth, freight on that car having been paid. One car, No. 100824, was consigned to the defendants. One, No. 70183, was shipped by a corporation named the Morse Company to their own order, and ordered delivered to defendants on payment of freight. The remaining three cars were consigned by a firm named Alcott & Co., to their own order and ordered delivered to defendants on payment of freight, under a general arrangement between defendants and Alcott & Co. that the freight should be deducted from the price of the merchandise and thus be paid eventually by Alcott & Co. The defendants conceded the correctness of the freight bills as to amount, and stipulated that they were liable for them if the respective cars were properly delivered, but denied that proper delivery had been made. Apparently no question was raised on the trial, but that defendants were liable for freight on any car of which a proper tender had been made, whether accepted or not; and the case seems to have been tried on that theory. This fact disposes of a troublesome question as to defendants' liability, for not one of the five cars was actually delivered and accepted; plaintiff in each case asserting and enforcing its lien, or claim of lien, for both freight and demurrage, and defendant in some cases refusing to receipt, in some refusing to pay demurrage, sometimes both, and, as there was no specific contract of defendants with the railroad to pay freight, they would seem not to be liable unless there was actual delivery and acceptance, the primary liability resting on the consignors (Grant v. Wood, 21 N. J. Law, 292, 47 Am. Dec. 162; Central R. R. v. MacCartney, 68 N. J. Law, 165, 52 Atl. 575; 6 Cyc. 500, 501), or unless the railroad was entitled to sue on the arrangement between Alcott & Co. and defendants as to deduction of the freight from Alcott's bill as a contract made for its benefit (Joslin v. N. J. Car Spring Company, 36 N. J. Law, 141). Even acceptance by consignee of delivery does not conclusively establish his liability for freight. C. R. R. v. MacCartney, supra.

But this was not a mooted question at the trial. The important controversies were as follows: Defendant denied that plaintiff was entitled to charge for car service, or demurrage, at all, or, if so entitled, that the charges were reasonable; denied that plaintiff had made or tendered a good delivery, especially claiming that delivery should have been made at a private siding, and also that plaintiff was not entitled to receipts for the car loads when and as demanded. The trial judge held that the right to charge demurrage was clear both by common law and our statute (P. L. 1903, p. 670, § 47), but left it to the jury to say whether the railroad had laid a proper foundation to support a claim for demurrage in the particular case. He also left to the jury the question whether the charge of $1 a day for demurrage was a reasonable one, whether the railroad was bound to deliver on the private siding, or, rather, whether the siding in dispute "was a private siding, and not a siding used generally by the company for the unloading or reception of freight," and also whether the defendants were justified in refusing to sign receipts; confining his observations on this latter point to one car which was locked, as though it was typical of all the cars, which it was not. The jury found a verdict for defendant, and the judgment thereon is now before us for review.

Our examination of this case leads u...