McNees v. Missouri Pacific Ry. Co.

• Decision Date: 10 May 1886
• Citation: 22 Mo.App. 224
• Parties: WILLIAM A. MCNEES, Respondent, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
• Court: Missouri Court of Appeals

22 Mo.App. 224

WILLIAM A. MCNEES, Respondent,

v.MISSOURI PACIFIC RAILWAY COMPANY, Appellant.

Kansas City Court of Appeals, Missouri.

May 10, 1886.

APPEAL from Pettis Circuit Court, HON. JOHN P. STROTHER, Judge.

Affirmed.

Statement of case by the court.

The original petition in this case was, in all respects, the same as the amended petition hereinafter set out in full, with one exception. The original petition alleged that the contract sued on was made “prior to the first day of July, 1882;” the amended petition alleged that the contract was made “on, or about, the first day of July, 1882.”

The amended petition was as follows:

“Plaintiff, for his amended petition, states that the defendant on the first day of July, 1882, long prior thereto, ever since that time, and now, was, and is, a corporation duly and legally incorporated as such by law, and as such authorized to sue and be sued, plead and be impleaded in all the courts in this state.

That the business of said corporation was, and is, the running and operation of the Missouri Pacific Railroad, its branches and divisions, and the business of said corporation was, and is, that of a common carrier of freights and passengers, said railroad running and extending from St. Louis, in the state of Missouri, to Atchison, in the state of Kansas, through the towns of Smithton, Dresden, La Monte, and Sedalia, in the state of Missouri; and also the railroad running and extending from Hannibal, in the state of Missouri, to Fort Scott, in the state of Kansas, known as the Kansas & Texas Division of the Missouri Pacific Railway, through the towns of Clifton, Beaman, Camp Branch, Green Ridge, Windsor, and Pleasant Green, Pilot Grove, and Harris, in the state of Missouri, and, also, what is known as the Lexington Branch of said railway, running and extending from Sedalia, in the state of Missouri, to Lexington, in said state.

Plaintiff states that from the first day of July, 1882, to January 1, 1883, he engaged in the business of buying oats and wheat, and shipping the same to the St. Louis market, and there selling the same; that on, or about (prior to, before amendment), the first day of July, 1882, plaintiff made a contract with defendant, whereby defendant agreed to carry wheat and oats, in ‘car lots,’ for plaintiff, in its freight cars, from various stations on its said railroad, divisions, and branches thereof, to St. Louis, at reduced, or, what is termed special rates, the same being lower than the tariff rates; that said contract was to apply to all wheat and oats shipped by plaintiff, on defendant's said railroad, its divisions and branches, embraced in the following territory, to-wit:

On all the wheat and oats shipped on the Missouri Pacific main line from Tipton, Moniteau county, Missouri, to La Monte, Pettis county, Missouri, inclusive, and on the Kansas & Texas division, from Pilot Grove, in Cooper county, Missouri, to Clinton, in Henry county, inclusive, and on the Lexington branch, from Sedalia to Brownsville, in Saline county, Missouri, inclusive, it being understood that plaintiff, in order to have the benefit of such reduced, or special, rates, was to ship only in ‘car lots,’ pay the full price of a car load, to-wit:

Twenty thousand (20,000) pounds, whether the car contained so much, or less, and was to ship a large quantity of wheat and oats over said railroad, during the continuance of said contract; that at the time said contract was made, and during its continuance, the ‘tariff rates' for shipping wheat from La Monte, Sedalia, Smithton, Dresden, Hughesville, Houstonia, and Clifton, on defendant's said railroad, divisions, and branches, to St. Louis, was as follows, to-wit:

Twenty (20) cents per one hundred (100) pounds for wheat, and seventeen and one-half (17 1-2) cents per one hundred (100) pounds for oats; and from Beaman, on the Kansas & Texas division of said railroad, to St. Louis, twenty-two and one-half (22 1-2) cents per one hundred (100) pounds for wheat, and twenty (20) cents per one hundred (100) pounds for oats; and from Pleasant Green, Pilot Grove, and Harris, on said division, to St. Louis, seventeen and one-half (17 1-2) cents per one hundred (100) pounds for wheat, and fifteen (15) cents per one hundred (100) pounds for oats; and from Windsor and Green Ridge, on said division, to St. Louis, twenty-two and one-half (22 1-2) cents per one hundred (100) pounds for wheat, and twenty (20) cents per one hundred (100) pounds for oats.

Plaintiff states, that by the terms of said contract, he was to pay to defendant's agents the ‘tariff rates,’ and receive back from defendant a ‘rebate,’ or so much per one hundred (100) pounds on all wheat and oats shipped during the continuance of said contract, to be paid back at the termination of each month, until the expiration of said contract; that by the terms of said contract, defendant agreed to return to plaintiff a ‘rebate,’ and to pay back and return to plaintiff, at the end of each month, on all wheat shipped from La Monte, Sedalia, Dresden, Smithton, Hughesville, Houstonia, and Clifton, and Pilot Grove and Harris, on defendant's railroad, to St. Louis, between the first day of July, 1882, and the thirty first day of December, 1882, two (2) cents per one hundred (100) pounds, and two and one-half (2 1-2) cents per one hundred (100) pounds on all oats shipped from said last named points, to St. Louis. And defendant agreed to return to plaintiff a ‘rebate,’ and to pay back and return to plaintiff, at the end of each month, on all wheat shipped from Beaman, on defendant's said railroad, to St. Louis, during said time, four and one-half (4 1-2) cents per one hundred (100) pounds, and five (5) cents per one hundred (100) pounds on all oats shipped from said place. And defendant agreed to return to plaintiff a ‘rebate,’ and to pay back and return to plaintiff, at the end of each month, on all wheat shipped from Pleasant Green, Green Ridge, and Windsor, on defendant's said railroad, to St. Louis, during said time, two (2) cents per one hundred (100) pounds, and on all oats so shipped within said last named date, five (5) cents per one hundred (100) pounds.

Plaintiff states that from the first day of July, 1882, to the thirty-first day of December, 1882, inclusive, he shipped from Smithton, Dresden, La Monte, Sedalia, Houstonia, Hughesville, and Clifton, over defendant's said railroad, to St. Louis, four millions, seven hundred and forty thousand, six hundred and seventy (4,740,670) pounds of wheat, for which he paid defendant the sum of nine thousand, four hundred and eighty-one dollars, and thirty-four cents ($9,481.34), and is therefore entitled, under said contract, to recover from defendant a ‘rebate,’ and to receive back nine hundred and forty-eight dollars and thirteen cents ($948.13); that during said time plaintiff shipped from said last named points, over defendant's said railroad, to St. Louis, two millions, four thousand, one hundred and seventy-five (2,004,175) pounds of oats, for which plaintiff paid to defendant, at ‘tariff rates,’ three thousand, six hundred and twenty-nine dollars, and six cents ($3,629.06), and is, under, and by the terms of said contract, entitled to recover back from defendant, the sum of six hundred and twenty-nine dollars and six cents ($629.06).

Plaintiff states, that during said time, plaintiff shipped from Beaman, over defendant's said railroad, to St. Louis, three hundred and thirty-five thousand, three hundred and sixty (335,360) pounds of wheat, for which plaintiff paid defendant, as freight, seven hundred and fifty-four dollars and forty-six cents ($754.46), and is entitled to recover of defendant a ‘rebate,’ and to receive back, under said contract, one hundred and fifty dollars and eighty-three cents ($150.83), and during said time plaintiff shipped from said Beaman, over defendant's said railroad, to St. Louis, five hundred and sixty-three thousand, seven hundred and twenty-five (563,725) pounds of oats, for which plaintiff paid defendant, as freight, five hundred and twenty-seven dollars and forty-six cents ($527.46). Plaintiff is, therefore, entitled to receive back from defendant, as a ‘rebate,’ the sum of one hundred and thirty-one dollars and ninety cents ($131.90).

Plaintiff states, that during said time he shipped from Windsor and Green Ridge, over defendant's railroad, to St. Louis, twenty thousand (20,000) pounds of wheat, for which he paid defendant, as freight, forty-five dollars ($45.00), and is entitled, under said contract, to receive back from defendant, as a “rebate,' and to receive back from defendant four dollars ($4.00).

Plaintiff further states, that during said time he shipped from Green Ridge, over defendant's said railroad, to St. Louis, twenty thousand, five hundred (20,500) pounds of oats, for which plaintiff paid to defendant, as freight, forty-one dollars ($41.00), and is entitled to receive back from defendant, as a ‘rebate,’ the sum of ten dollars and twenty-five cents ($10.25).

Plaintiff states that, during the continuance of said contract, he shipped from Pilot Grove and Harris, on defendant's said road, to St. Louis, three hundred and thirty-nine thousand, nine hundred and ninety ($339,990) pounds of wheat, for which he paid defendant, for freight, at tariff rates, four hundred and nineteen dollars and ninety-two cents ($419.92), and is entitled to recover back from defendant forty-seven dollars and ninety-eight cents ($47.98), as such rebate.

Plaintiff states that he has fully performed and carried out the said contract on his part, in all respects, but defendant has refused, and still refuses, to carry out its part of said contract.

Plaintiff states that under, and by the terms of, said contract, he is entitled to recover of and from said defendant, the sum of two thousand, one hundred and ninety-five dollars and one cent ($2,195.01). That he first demanded the same on the twentieth day of July, 1883, and at divers times...