Hurt v. Atlanta, B. & A. Ry. Co.

• Decision Date: 18 November 1919
• Docket Number: 7 Div. 543
• Court: Alabama Court of Appeals
• Parties: HURT v. ATLANTA, B. & A. RY. CO.

84 So. 631

17 Ala.App. 241

HURT v. ATLANTA, B. & A. RY. CO.

7 Div. 543

Court of Appeals of Alabama

November 18, 1919

Appeal from Circuit Court, Talladega County; Hugh D. Merrill, Judge.

Action by the Atlanta, Birmingham & Atlantic Railway Company against W.P. Hurt to recover for an undercharge of freight upon a shipment of oranges from Ora, in the state of Florida, to Lineville, in the state of Alabama. Judgment for plaintiff and the defendant appeals. Affirmed.

The only reference to the motion to strike count 4 and pleas 8 and 9 is contained in the judgment of the court wherein it is recited:

"Whereupon the defendant moves the court to strike count 4, and this motion to strike count 4 being submitted to the court and understood by the court, it is ordered adjudged and decreed by the court that the said motion be and the same is overruled."

The same recital occurs as to the motion to strike pleas 8 and 9.

The following are counts 1 and 2 of the complaint:

(1) Plaintiff claims of the defendant the sum of $97.80 together with the interest thereon, due by the defendant to the plaintiff by an account on, to wit, December 18, 1913 which said account is past due and unpaid.

(2) Plaintiff claims of the defendant, to wit, $97.80, with interest thereon from December 18, 1913, both of which is past due and unpaid, for and on account of a shipment of, to wit, 300 boxes of oranges, aggregating in weight, to wit 24,000 pounds, from the station of Ora, in the state of Florida, to Lineville, a station in the state of Alabama part of which transportation was over the line of railway of the plaintiff, upon which shipment the legal rate of freight chargeable for such transportation was, to wit, $238.80, as shown by the legal published tariff of freight charges on file and in force and effect; and plaintiff avers that the defendant paid for and on account of such transportation charges the sum of, to wit, $141, and that said balance of $97.80 has never been paid.

The following are the pleas of the defendant referred to in the opinion:

(3) The demand sued on has not been transferred to the plaintiff by decree of said court of the United States.

(4) The defendant has paid before the bringing of this suit all that was legally due and owing on the amounts sued on.

(5) The defendant paid to the Atlanta, Birmingham & Atlanta Railway Company $181.80 at the time said oranges were delivered to the defendant, and the same was an amount equal to or greatly in excess of all amounts due said railway company for any and all charges legal it had against this defendant for the transportation of said oranges by it.

(6) At the time said account was transferred to the plaintiff the said Atlanta, Birmingham & Atlantic Railway Company, or the receiver operating the same, and the said railway company or the receiver, from whom plaintiff acquired the account was indebted to this defendant in the sum of $100 by account, and the defendant offers the same as a set-off against the demands sued on.

(7) The receivers of the Atlanta, Birmingham & Atlantic Railway Company, who were operating the same, falsely represented to defendant that the freight on a car of oranges from Ora, in the state of Florida, to Lineville, in the state of Alabama, would amount to $181.80, and by means of such false representation induced the defendant to purchase said oranges at Ora, Fla., and ship same to Lineville, in the state of Alabama, for the purpose of selling the same for a profit, and the defendant did not know what said freight rate was, and relied upon such representations, and purchased and caused to be shipped and sold said oranges based on such freight rate, and paid same to the receivers of the said Atlanta, Birmingham & Atlantic Railway Company, and if the rate is greater or more than $181.80 the excess would be a loss to the defendant, and the defendant would be damaged to that extent, and said receivers would be and are

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