Fremont Milling Company v. Chicago & Northwestern Railway Company
| Decision Date | 19 May 1917 |
| Docket Number | 19526 |
| Citation | 163 N.W. 331,101 Neb. 362 |
| Parties | FREMONT MILLING COMPANY, APPELLEE, v. CHICAGO & NORTHWESTERN RAILWAY COMPANY, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Dodge county: FREDERICK W BUTTON, JUDGE. Reversed and dismissed.
Judgment of the trial court reversed and cause dismissed.
A. A McLaughlin, Lyle Hubbard and Wymer Dressler, for appellant.
Courtright Sidner & Lee, contra.
During the spring and summer of 1912, the plaintiff billed in car-load lots over defendant's lines, with milling in transit privileges at Fremont, grain from various points in this state to various points, all but one outside of the state, paying freight charges from point of shipment to point of destination. A part of each shipment, or its equivalent, in accordance with milling in transit rules, was afterwards forwarded to the points of destination. The remaining portion was not, leaving the plaintiff an unused portion of its milling in transit credits. Plaintiff's action is based on this unused credit for grain never forwarded. It sues to recover the difference between what would be the local rates on the unforwarded grain in car-load lots to Fremont and the rates originally paid on this grain, or its equivalent. The defendant points out that in each case the plaintiff in its claim has segregated the unforwarded tonnage from the remainder of the shipment both in and out of Fremont; that by virtue of the milling in transit privilege plaintiff was permitted to ship the grain to Fremont, resume possession, mill at that point, and forward the produce to destination upon the through rate, which was less than the two local rates would have been. Defendant admits that plaintiff was entitled to have the product, after milling of each car, forwarded within the time and according to the rate regulations and tariff provisions governing such shipments and milling in transit privileges.
It appears that, under the regulations for such shipments, there was a time limit within which grain held in transit could be forwarded, or what is called transit credit could be used. If the grain was not tendered for shipment within the time, the right to ship or use the transit credit terminated and the credit forfeited. No such tender was made in this case.
The tariff rules and regulations governing shipments with milling in transit privileges go into great detail, and permit only the various products of the grain to be forwarded, so that the equivalent in weight of the shrinkage and portion lost in milling, what is called invisible loss, is not permitted to be forwarded. They provide that an account shall be kept and settlement had before the time limit...
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