Houston & T. C. Ry. Co. v. Ahlers, (No. 243.)

• Court: Court of Appeals of Texas
• Writing for the Court: Stanford
• Citation: 274 S.W. 333
• Docket Number: (No. 243.)
• Decision Date: 28 May 1925
• Parties: HOUSTON & T. C. RY. CO. v. AHLERS.

274 S.W. 333 HOUSTON & T. C. RY. CO.
v.
AHLERS. (No. 243.) Court of Civil Appeals of Texas. Waco. May 28, 1925. Rehearing Denied June 25, 1925.

Appeal from Limestone County Court; H. F. Kirby, Judge.

Action by the Houston & Texas Central Railway Company against H. W. Ahlers. Judgment for defendant in the Justice Court was affirmed by the county court, and plaintiff appeals. Reversed and rendered.

Baker, Botts, Parker & Garwood, of Houston, and C. S. & J. E. Bradley, of Groesbeck, for appellant.

Ira Lawley, of Groesbeck, for appellee.

Statement.

STANFORD, J.

Appellant sued appellee in the justice court for an undercharge of $140.79 on an interstate shipment of freight. The case was tried in both the justice court and the county court, and is properly before this court as an agreed case, in substance, as follows:

January 28, 1924, the Rock Island Plow Company shipped from Rock Island, Ill., to appellee, at Groesbeck, Tex., a car of agricultural implements of the net weight at point of shipment of 13,600 pounds, under a uniform bill of lading, at the rate of $1.23½ per hundredweight, car to stop in St. Louis to load certain wagons, notify Leudinghaus Wagon Company. After said wagons were loaded, the net weight of the freight was 35,400 pounds. The correct rate for this shipment, as fixed by said railroad companies, and as shown by the printed and published schedule of rates filed with and approved by the Interstate Commerce Commission, and in force at the time, and then posted in the stations of said carriers, was $1.23½ per hundredweight. The appellant, on the arrival of the shipment, figured the freight due at said rate on the weight at the point of shipment, failing to take into consideration the additional weight caused by loading the wagons at St. Louis, and, such initial weight being less than 24,000 pounds, the minimum per car allowed, it figured the rate upon said car at 24,000 pounds at the rate stated, making the result $296.40, which appellee paid and appellant accepted and receipted appellee therefor, and delivered to appellee, and appellee accepted said car of freight. The car in fact when delivered weighed net 35,400 pounds, and the correct amount of freight at said approved and published rate was $437.19. Hence there was an undercharge of $140.79, which the railroad company was entitled to collect before delivering the car of freight to appellee, and which appellant failed to collect from or make demand therefor upon appellee, and failed to notify appellee of said undercharge at that time, but delivered the car to appellee

Page 334

after he had paid therefor the sum of $296.40; the same being all the freight demanded by appellant at the time of delivery. The error in figuring the amount of freight was solely that of the railway company's, and was unknown by, and was in no way contributed to by, appellee, and the published and approved rates of said railroads and the classifications given said car were unknown by appellee. After receiving the freight, appellee priced and sold all of said goods upon a basis of their cost, plus the freight which he had actually paid, in good faith, believing he had paid the correct amount and all that he was liable for or could be called upon to pay, and he based his selling price and profits thereon, and was not advised and did not know of any mistake in figuring the amount of freight until about 90 days after the car was delivered to him, and until after all of such goods were sold by him. That by the acts and conduct, as above set out, of the...