Maine Cent. R. Co. v. Fred I. Merrill, Inc.
Decision Date | 06 October 1961 |
Citation | 174 A.2d 112,157 Me. 484 |
Parties | MAINE CENTRAL RAILROAD CO. v. FRED I. MERRILL, INC. |
Court | Maine Supreme Court |
Scott W. Scully, Portland, for plaintiff.
Royden A. Keddy, Charles P. Barnes, II, Portland, for defendant.
Before WILLIAMSON, C. J., and WEBBER, TAPLEY, SULLIVAN, DUBORD and SIDDALL, JJ.
This action by the Maine Central Railroad Co. against Fred I. Merrill, Inc. to recover undercharges on two interstate freight shipments is before us on report upon an agreed statement of facts. The railroad is engaged in interstate and intrastate commerce as a common carrier and is subject to the Interstate Commerce Act. 49 U.S.C.A. § 1 et seq.
The first shipment was from a shipper in South Carolina consigned to the defendant at Bangor, freight charges collect. Shortly after delivery in August 1958, the defendant paid the freight charges billed by the railroad in the amount of $683.10. The railroad later discovered the correct charge under the classifications and tariffs published and filed with the Interstate Commerce Commission should have been $972.90. In December 1958 the railroad first requested payment of the balance due of $289.80 for additional freight charges. The defendant has refused to make payment.
The second shipment was from a shipper in Wisconsin consigned to the shipper at Portland, 'notify Fred I. Merrill, Inc. at Portland, Maine, freight charges collect.' In December 1959 the shipment was delivered to the defendant which paid the freight charges of $922.50 billed by the railroad. It later appeared that the correct charge should have been $1,454.85. The defendant has refused to pay the balance due amounting to $532.35 since demand was made in December 1959.
With reference to each shipment, if the evidence is admissible, it is agreed: that the defendant paid the shipper the purchase price of the items shipped after deducting the freight charges paid the railroad; that the railroad's demand for payment of a deficiency in freight charges was made subsequent to the payment by the defendant to the shipper; that such payment terminated the business relationship between the defendant and the shipper; that the railroad had no knowledge of the terms of the agreement with the shipper or of payment of the purchase price.
In each instance '(the railroad) objects to evidence relating to contractual relationships between Defendant and third parties and evidence of payments made by Defendant to third parties as being irrelevant.'
Decision is controlled by Federal law. The pertinent provision of the Interstate Commerce Act reads:
'* * * nor shall any carrier charge or demand or collect or receive a greater or less or different compensation for such transportation of passengers or property, or for any service in connection therewith, between the points named in such tariffs than the rates, fares, and charges which are specified in the tariff filed and in effect at the time; nor shall any carrier refund or remit in any manner or by any device any portion of the rates, fares, and charges so specified, nor extend to any shipper or person any privileges or facilities in the transportation of passengers or property, except such as are specified in such tariffs.' 49 U.S.C.A. § 6, par. (7).
For our purposes liability of the defendant in each instance is based on this provision. There is no suggestion that the defendant avoided (or indeed on the facts could have avoided) liability for additional charges found due after delivery under 49 U.S.C.A. § 3(3). The statute relating to demands discharged by partial payment (R.S. c. 113, § 64), would not be applicable in any event to this situation which is controlled, as we have said, by Federal law.
In our view the defendant is here liable for the undercharges under principles long since firmly established. The Supreme Court, in the leading case of Pittsburgh, C., C. & St. L. Ry. Co. v. Fink, 250 U.S. 577, at page 581, 40 S.Ct. 27, 63 L.Ed. 1151, in holding the consignee liable under an identical statute, said:
* * *
* * *
* * *
* * *
* * *
* * *
See also Louisville & Nashville R. R. Co. v. Maxwell, 237 U.S. 94, 35 S.Ct. 494, 59 L.Ed. 853; New York Cent. & H. R. R. Co. v. York & Whitney Co., 256 U.S. 406, 41 S.Ct. 509, 65 L.Ed. 1016; Baldwin v. Scott County Milling Co., 307 U.S. 478, 59 S.Ct. 943, 948, 83 L.Ed. 1409; F. Burkhart Mfg. Co. v. Fort Worth & D. C. Ry. Co., 8 Cir., 149 F.2d 909; Southern Pac. Co. v. Wheaton Brass Works, 5 N.J. 594, 76 A.2d 890; New York, N. H. & H. R. R. Co. v. Calif. Fruit Growers Exchange, 125 Conn. 241, 5 A.2d 353; Railway Express Agency v. Michelson, 311 Mass. 704, 42 N.E.2d 805; Montpelier & Wells R. R. v. Caldbeck-Cosgrove Corp., 110 Vt. 390, 8 A.2d 681; 13 C.J.S. Carriers § 393; 9 Am.Jur., Carriers §§ 160, 164, 624.
The Fink case has been cited with approval in Grant v. American Ry. Express Co., 126 Me. 489, at page 492, 139 A. 784, at page 785, in which the Court said:
In Boston and Maine R. R. v. Hannaford Bros. et al., 144 Me. 306, 68 A.2d 1, 4, the consignee as agent of the consignor received carloads of bananas and requested collection of the freight charges from the consignor. The railroad sought for a period of thirteen month without success to recover payment from the consignor. The Court, in holding for the railroad, said:
'The consignee of property transported in interstate commerce by acceptance of delivery makes himself liable for the transportation charges.' Citing Fink, supra, and Central Iron & Coal Co., infra.
The defendant...
To continue reading
Request your trial-
Illinois Cent. Gulf R. Co. v. Sankey Bros., Inc.
...by published tariffs. Nashville, C. & St. L. Ry. Co. v. Gilliam (1924), 212 Ala. 120, 101 So. 889; Maine Central R.R. Co. v. Fred I. Merrill, Inc. (1961), 157 Me. 484, 174 A.2d 112; New York, New Haven & Hartford R.R. Co. v. Lord & Spencer, Inc. (1931), 273 Mass. 583, 174 N.E. 179; Mobile &......
-
Wheaton Van Lines, Inc. v. Gahagan
...consignor accepted no contractual primary obligation to pay freight charges, consignee may be liable); Maine Central R.R. v. Fred I. Merrill, Inc., 157 Me. 484, 174 A.2d 112 (1961) (consignee liable to carrier for underpayment deficiency in freight charges although consignee earlier paid co......