Fry v. Louisville, New Albany and Chicago Railway Company

• Decision Date: 16 October 1885
• Docket Number: 11,920
• Citation: 2 N.E. 744,103 Ind. 265
• Parties: Fry et al. v. Louisville, New Albany and Chicago Railway Company
• Court: Indiana Supreme Court

2 N.E. 744

103 Ind. 265

Fry et al. v. Louisville, New Albany and Chicago Railway Company

No. 11,920

Supreme Court of Indiana

October 16, 1885

From the Montgomery Circuit Court.

Judgment affirmed, with costs.

E. C Snyder, for appellants.

A. D Thomas, for appellee.

OPINION

Zollars, J.

Appellants brought this action to recover from appellee the amount of an alleged overcharge on freight.

Their case, as made in the first paragraph of the complaint, is as follows: They delivered to appellee for shipment one car load of horses, buggies and seed oats. Appellee undertook and agreed in writing to transport and carry, and cause to be transported and carried, said car load of horses, buggies and seed oats from Crawfordsville, Indiana, to Jamestown, Dakota, for the sum of $ 120, and, as evidence of that agreement, delivered to appellants a receipt and contract in writing, which is set out in full as a part of this paragraph of complaint. The contract thus set out is what is commonly known as a bill of lading. The stipulations in the bill of importance here are, that the transportation was to be made upon the terms and conditions contained in the bill, and a guaranty that the rate of freight for the transportation should not exceed the rates specified in the bill. Under the head of "Marks and Consignees" is the following: "This bill of lading is from Crawfordsville, Indiana, to Jamestown, Dakota. The rate of freight to be $ 120 per car." Under the head of "Description of Articles" is the following: "1 car horses, buggies, O. K. and seed oats. * * For farm purposes. Pass man in charge. This car to go through." Written across the bill of lading is the following: "Read this contract." The horses, buggies and seed oats were safely transported to the place of destination over appellee's road and connecting road. At the place of destination, appellants presented the bill of lading and demanded of the railroad company in charge, the horses, buggies and seed oats, at the same time tendering $ 120, the stipulated amount of freight. This the company refused and demanded $ 235, which appellants were compelled to pay in order to get their property, and which they did pay under protest. To recover back the difference between this amount and the amount agreed upon, this action was brought.

The second paragraph of the complaint is for money had and received. The ground upon which the demand is predicated is not specifically stated.

To this complaint, appellee filed an answer in one paragraph. While it neither expressly admits nor denies the averments in the complaint, it is in the nature of a confession and avoidance. The substance of it is, that appellee had an arrangement with companies owning connecting lines of railroad, under which they would receive from its line and forward to Jamestown, Dakota, at reduced rates, all freights that were being forwarded upon through contracts "for farm purposes;" that said companies, owning the lines over which the car of horses, etc., was transported, would have carried it for such a sum; that there would have been no charge, additional to the amount stated in the bill of lading, had the horses, buggies and seed oats been, in fact, for farm purposes; that appellants represented to appellee's agents, at the time the contract of shipment was made, that the horses, etc., were for farm purposes; that the representations were false, and that said horses, etc., were not shipped "for farm purposes," as represented by appellants, and as stipulated in the contract sued on; that it was owing to the discovery of the fact that said horses, etc., were not forwarded to Dakota for farm purposes, that the additional charge was made for carrying them, and that the additional charge, together with the $ 120 agreed upon, was only the usual price for that class of freight from Crawfordsville to Jamestown, Dakota.

The overruling of a demurrer to this answer is the assigned error upon which appellants rely for a reversal of the judgment.

It will be observed that it is alleged in the first paragraph of the complaint, that the contract, as to the amount to be charged and paid for the carriage, was reduced to writing. The bill of lading containing that contract was filed with and as a part of the complaint. The contract is very clearly a contract in writing,...