Hite v. Central R. of New Jersey

• Decision Date: 07 June 1909
• Docket Number: 42.
• Citation: 171 F. 370
• Parties: HITE et al. v. CENTRAL R. OF NEW JERSEY.
• Court: U.S. Court of Appeals — Third Circuit

171 F. 370

HITE et al. v. CENTRAL R. OF NEW JERSEY.

No. 42.

United States Court of Appeals, Third Circuit.

June 7, 1909

Wm. A Glasgow, Jr., for plaintiffs in error.

A. M Beitler, for defendant in error.

Before GRAY and BUFFINGTON, Circuit Judges, and YOUNG, District Judge.

GRAY Circuit Judge.

The plaintiffs in error were shippers of coal from the bituminous coal region of West Virginia to tide water in New York Harbor. The shipments were made over the Central Railroad Company of New Jersey, which company received the coal from a connecting railroad and transported the same to its destination at Elizabethport, N.J. On the 10th of August 1906, the plaintiffs in error entered into a written agreement, with surety, with the Central Railroad Company of New Jersey, the defendant in error, for the punctual payment of all moneys then or thereafter to become due from the plaintiffs in error, for tolls, freight and charges on coal or coke passing over the railroads and canals operated by the said defendant in error, and providing for a lien upon such coal or coke in the possession of the said defendant in error, for all sums due and unpaid on account of such freight, tolls, and charges.

Attached to said agreement was a power of attorney, authorizing any attorney of a court of record, upon filing a copy of said agreement, accompanied by an affidavit of an officer or agent of the defendant in error, of the amount due under the said agreement, to sign a stipulation for entering an amicable action, and to confess judgment thereon against the plaintiffs in error for such amount, with the usual release of errors, waiver of exemption and stay of execution. On October 28, 1907, such an amicable action in assumpsit was entered in the court below, pursuant to said agreement, and judgment confessed thereon for the amount stated in the accompanying affidavit of the general auditor of the defendant in error, to wit, $3,291, with interest on the same from different dates, as to different portions thereof. On the 6th of November, 1907, there was entered upon the record of said judgment an acknowledgment by the plaintiff of the receipt from the defendants of the sum of $1,932, and that the judgment was thereby reduced by that amount.

On the said 6th of November the plaintiffs in error, as defendants below, presented to the court an affidavit, wherein it was stated that before the confession of the judgment in said case, there had been, and still was, a controversy between the parties thereto, as to the amount of demurrage charges due by defendant to plaintiff; that defendants, upon examination of the statements of claim presented by the plaintiff for their demurrage charges, had agreed that the sum of $1,932 was due to the plaintiff, as being proper charges for demurrage, but had contended and still contend that the balance of the demurrage charges were unjust and contrary to the rules and schedules of the plaintiff, and therefore contrary to the agreement between the parties; that the defendants had offered to pay to the plaintiffs the said sum of $1,932 in full settlement of the demurrage charges claimed by the plaintiff, but that the plaintiff refused to receive the same in full settlement, and thereupon entered its judgment in pursuance of the said agreement made between plaintiffs and defendants on the 10th of August, 1906; that after entry of the said judgment, the payment by the plaintiff of the said $1,932 was made, and acknowledgment thereof noted on the record of said judgment, and that the balance of said judgment of $1,359 is composed of claims for demurrage made by the plaintiff, which the defendants contend are illegal and contrary to the agreement between plaintiff and defendant. The grounds upon which this charge for demurrage is claimed to be illegal, are then stated in the affidavit, in detail, and, so far as pertinent, will appear hereafter in the discussion of the assignments of error filed by the defendants below. After the statement of the facts and circumstances constituting these grounds, the defendants prayed for a rule to show cause why the judgment entered in the said case, as to the sum of $1,359, together with interest as claimed, should not be opened and the defendants let into a defense. The rule to show cause was granted by the court below, and an answer filed thereto by the plaintiff. An order to take depositions upon the rule to open judgement was also granted, and upon the return of the same, and after consideration thereof, the rule was discharged. To the order and judgment discharging the said rule, a writ of error was sued out by the defendants, and the record, with the assignments of error thereto, is brought before this court for review.

The questions raised by these assignments are two, and both relate to the proper interpretation of certain rules of the railroad company, the defendant in error, for ascertaining the demurrage charges incurred by the shippers of coal, in respect to the detention of cars after arrival at their destination. Prior to the shipments in question, the defendant in error had filed with the Interstate Commerce Commission the following schedule of rules concerning demurrage charges on anthracite and bituminous coal and coke that might be held for transshipment at Port Liberty, Elizabethport, and several other places on New York Harbor in the state of New Jersey, and it is admitted that, subject to these rules, the shipments in question were made:

'Rule 1. On and after May 1, 1907, all cars of coal and coke held for trans-shipment by water more than five days per car, upon the average computed by the month, and exclusive of Sundays and legal holidays, shall be subject to demurrage, representing service of cars, at the rate of $1 per car per day after said five days. (See rule 3.)

'Rule 2. Statements of these charges shall be made up monthly, and shall include only cars that are released during the month covered by such statements.

'Rule 3. In computing time of detention, first ascertain the total number of days between the date of arrival of each car, and date released, from which total deduct the number of Sundays and holidays intervening. From the total figures obtained in this manner for all cars handled for a consignee during the month shall be deducted the product of the number of such cars multiplied by five, the remainder, if any, being the number of days per car for which demurrage will be charged.

'Rule 4. When lading is reconsigned, or sold on track at destination, demurrage charges shall be applied as per rule 1, and the days of detention of any car shall follow that car and be charged to the account of the new

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