Lake Erie & W.R. Co. v. Fantz

• Decision Date: 27 January 1927
• Docket Number: No. 12552.,12552.
• Citation: 154 N.E. 875,85 Ind.App. 569
• Court: Indiana Appellate Court
• Parties: LAKE ERIE & W. R. CO. et al. v. FANTZ et al.

85 Ind.App. 569

154 N.E. 875

LAKE ERIE & W. R. CO. et al.

v.FANTZ et al.

No. 12552.

Appellate Court of Indiana, in Banc.

Jan. 27, 1927.

Appeal from Superior Court, Madison County; W. S. Ellis, Judge.

Action by Franklin Fantz and another, constituting a partnership known as the Domestic Coal Company, against the Lake Erie & Western Railroad Company, the Louisville & Nashville Railroad Company, and others. Judgment for plaintiffs, and named defendants appeal. Reversed, with instruction.

John B. Cockrum, of Indianapolis, and Arthur A. Beckman, of Anderson, for appellants.

Arthur C. Call, of Anderson, for appellees.

NICHOLS, J.

This was an action brought by appellees Fantz sad Davies, constituting a partnership known as the Domestic Coal Company, against appellants and two other defendants to recover the value of a carload of coal shipped over the railroad lines of appellants and others, which coal was not delivered to appellees, the consignees thereof. It appears by the special finding that appellees were, on or about March 18, 1924, a partnership doing business under the name of the Domestic Coal Company, in Muncie, Ind., and were engaged in the wholesale and retail of coal.

On said day they purchased of the Southern Coal & Coke Company a carload of Kentucky coal at the invoice price of $1.75 per ton, and at said time said company delivered said carload of coal to appellant Louisville & Nashville Railroad Company, at Sassafras, Ky., for transportation and delivery to appellees at Muncie, Ind. The amount of coal so delivered was 38.35 tons.

Appellees paid for said coal $67.11, the amount of the invoice price thereof, but did not pay any of the freight charges for the transportation of said coal to Muncie, Ind. Such unpaid freight charges were $2.70 per ton, and amounted to $103.55 on said carload of coal.

In the transportation of said coal, appellant Louisville Company was the initial carrier, and appellant Lake Erie Company and other companies were connecting carriers. No part of said sum so paid for said coal has ever been paid to appellees by any one. Appellant Lake Erie Company, by mistake, delivered said coal to a person other than appellees; collected freight charges therefor of such other person; and wholly failed to deliver said coal or any part of it to appellees, and they never received said coal or any part of it.

The market value of coal of the kind and character of the coal contained in the shipment complained of was $2 to...