Louisville v. Flannagan

• Decision Date: 08 December 1887
• Citation: 14 N.E. 370,113 Ind. 488
• Court: Indiana Supreme Court
• Parties: Louisville, N. A. & C. Ry. Co. v. Flannagan and others.

113 Ind. 488

14 N.E. 370

Louisville, N. A. & C. Ry. Co.

v.Flannagan and others.¹

Supreme Court of Indiana.

December 8, 1887.

Appeal from circuit court, Clinton county; James V. Kent, Judge.

Geo. W. Easley, Geo. W. Friedly, and Bayless & Russell, for appellant. F. M. Trissall, for appellees.

Mitchell, C. J.

Samantha A. and James W. Flannagan, partners doing business under the firm name of S. A. Flannagan & Co., commenced this suit against the appellant railway company to recover damages for the alleged violation of certain contracts, which the plaintiffs charge were duly entered into between the parties to this action.

The complaint consisted of three paragraphs. In the first it is alleged that in the month of October, 1883, the plaintiffs were the owners of a manufacturing establishment and machinery for the manufacture of staves and heading, located at Fishers Station, on the line of the Wabash Railway, and that on the above-mentioned date the defendant agreed with them that if they would move their establishment to the town of Sheridan, on the line of its railway, it would carry staves and heading for them as cheap as the Wabash or Big Four roads, which were competing lines for the shipment of freight to the city of Indianapolis. It is also alleged that the defendant company agreed that it would be ready to receive and transport all staves or heading which the plaintiffs might furnish at points on the line of its road by the fifteenth of November, 1882. The complaint further charges that, relying on this agreement, the plaintiffs moved their factory and machinery to Sheridan, and commenced manufacturing staves and heading, in October, 1882; that from November 15, 1882, until March 26, 1883, the plaintiffs had, on the line of the defendant's railway at Sheridan, staves and heading to the aggregate value of $15,000, which they were willing and anxious to have the defendant receive and transport, and for the transportation of which they demanded cars, which the defendant neglected and refused to supply. This paragraph avers that the plaintiffs were damaged in a large sum for the cost of ricking and insuring the staves and heading, and for the depreciation in value of their property, which was caused by checking, cracking, and mildewing, and for interest on the money invested. The second paragraph alleged that the defendant, in a certain writing which is set out, proposed to the plaintiffs to carry such freight and property as they were engaged in manufacturing and handling, at a stipulated price per hundred weight, upon which price the company agreed to pay a rebate of two cents per hundred, in case the plaintiffs transported or furnished for transportation to Indianapolis 100 car-loads within a designated period. It was averred that the plaintiffs accepted the proposal so made, and delivered for transportation to Indianapolis over the defendant's line more than the designated number of car-loads within the time limited, and that they paid the freight at the price agreed upon, but that the defendant refused to pay the two cents per hundred rebate, which, the plaintiffs alleged, amounted to $1,000. The facts set up in the third paragraph involve substantially the same principles as are involved in the second. There was a verdict and judgment for the plaintiffs below.

On behalf of the railway company it is now contended that the first paragraph of the complaint does not state facts sufficient, and that the demurrer thereto should have been sustained, because, it is said, there is nothing in this paragraph to show any delivery, or any offer to deliver, any goods whatever to the railroad company for transportation. It is undoubtedly true that a carrier is not liable for failing to furnish cars, and for not transporting goods, unless goods are offered at a regular depot, or other usual or designated place for receiving freight. 3 Wood, Ry. Law, 1580. The averment in the first paragraph of the complaint is, in substance, that the plaintiffs had staves and heading of the value of $15,000 on the line of defendant's road at the town of Sheridan, which they were willing and anxious to have the defendant receive and transport, and that they often demanded of it, during the time the goods were so on its line, that it furnish cars and transport the staves and heading according to its contract, which it wholly neglected and refused to do. Within the ruling in Railway Co. v. Godman, 104 Ind. 490, 4 N. E. Rep. 163, the refusal of the company, upon demand, to furnish cars for the transportation of goods, such as those described, which are alleged to have been placed at a station upon its line to be transported, relieved the plaintiffs from making any further delivery, or offer to deliver. All that can be done by the owner of goods of the character and quantity of those described, which are designed for transportation, is to place them contiguous to the railway company's track at some usual or properly designated place, and request the company to furnish cars and receive the goods.

It is objected that the second paragraph of the complaint is defective in that it is not alleged therein that the plaintiffs notified the railway company of their acceptance of its proposition to carry freight and pay a rebate, as in the second paragraph stated. Further objection is made to this paragraph, on the ground that it does not allege that the 150 car-loads therein alleged to have been delivered for transportation by the plaintiffs were so transported in pursuance of the contract declared upon. It is urged, moreover, that the contract relied upon is invalid for a want of mutuality, in that the plaintiffs came under no obligation to transport their goods by the defendant's line. The contract, it is contended, merely gave them the option to have their freight transported without binding them to anything. The paragraph is not so definite and certain, in the respects referred to, as the rules of good pleading would commend. It is averred, however, that the “plaintiffs contracted with the defendant,” and that the terms of the contract are set forth in a certain letter written on behalf of the defendant to the plaintiffs. Whatever was necessary, therefore, in the way of accepting and giving notice of the acceptance of the terms proposed in the letter in order to complete the contract must be presumed, under the above averment, to have taken place. If the defendant had desired that the averment should be made more specific, so as to disclose more particularly what was done, a motion to that end would have been appropriate. So it is alleged, further, in the complaint, that the plaintiffs shipped 150 car loads of goods from Sheridan to Indianapolis, during the period within which the contract stipulated that, if 100 car-loads should be transported, a certain rebate was to be paid. Although not averred in terms, the irresistible inference arises that the goods were transported under the contract. It is quite true, as a general rule, that an offer of a bargain or proposition by one person to another, even though it be accepted by the other, is not enforceable as a contract, unless the parties are mutually bound by corresponding obligations. Thus in Railroad Co. v. Dane, 43 N. Y. 240, which was an action to recover damages for the breach of an alleged contract to carry and transport a quantity of railroad iron from New York to Chicago, it appeared that the contract relied on consisted of a...