Fordyce v. Johnson

• Decision Date: 01 July 1892
• Citation: 19 S.W. 1050
• Parties: FORDYCE <I>et al.</I> v. JOHNSON <I>et al.</I>
• Court: Arkansas Supreme Court

Page 1050

19 S.W. 1050

FORDYCE et al. v. JOHNSON et al.

Supreme Court of Arkansas.

July 1, 1892.

Appeal from circuit court, Monroe county; JAMES E. RIDDICK, Judge.

Actions by B. F. & G. F. Johnson against S. W. Fordyce and A. H. Swanson, receivers of the St. Louis, Arkansas & Texas Railway Company, to recover the statutory penalty for refusing to deliver freight on tender of charges on the bill of lading, and in replevin to recover possession of said freight. Judgment for plaintiffs for the penalty and in replevin. Defendants appeal. Reversed as to statutory penalty, and judgment in replevin modified.

J. C. Hawthorne and Sam H. West, for appellants. H. A. Parker, for appellees.

COCKRILL, C. J.

The penalty denounced by statute against a railway for failure to deliver freight upon tender of the charges due, as shown by the bill of lading, cannot be recovered against the railway, where the bill of lading does not represent the amount of charges that are legally demandable by the carrier to whom the tender is made. A plain illustration is where a through bill of lading is issued by a carrier who fixes a rate not authorized by the connecting carrier. Railway Co. v. Dwyer, (Tex. Sup.) 19 S. W. Rep. 470. In such a case the unauthorized contract does not deprive the last carrier of the right to hold the freight until his legal charges are paid. Crossan v. Railway Co., 149 Mass. 196, 21 N. E. Rep. 367. If the carrier who issues the bill of lading is authorized to stipulate that the last carrier will transport the freight over his line at a given rate, and the first or a succeeding carrier misroutes the freight so that, when it reaches the last carrier, it is burdened with charges for carriage over another line, which the owner of the goods had not agreed to pay, that does not prevent the last carrier from maintaining possession of the goods to protect his lien, for all lawful charges against them, for it is no fault of his that the additional charges have been incurred. Crossan v. Railway Co., 149 Mass. 199, 21 N. E. Rep. 367; Vaughan v. Railway Co., 13 R. I. 578. If the first carrier guaranties a through rate at a given sum, when the only authority he has from the last carrier is that the latter will carry the goods over his line for a given proportion of the rate fixed by their traffic arrangements, the guaranty is not binding upon the last carrier, because he has not authorized it. Such an arrangement does not make the connecting lines partners, nor constitute one the agent of the other for any purpose except to bind it to carry over its line at the rate agreed upon between them. Railway Co. v. Trippe, 42 Ark. 465. It cannot, therefore, throw upon the last carrier the burden of bearing an additional charge upon the goods incurred through the negligence of a preceding carrier in forwarding or carrying the goods to a wrong place, when the last carrier is not at fault. Price v. Railway Co., 12 Colo. 402, 21 Pac. Rep. 188; Hutch. Carr. § 491a. The undisputed facts place this suit for the statutory penalty in one of two attitudes, viz.: (1) If the goods were originally shipped to go under the bill of lading by way of Brinkley, on the appellants' road, there was no authority in the shipping carrier to issue the bill...