Musconetcong Iron Works v. Del., L. & W. R. Co.

• Decision Date: 20 June 1910
• Citation: 78 N.J.L. 717,76 A. 971
• Parties: MUSCONETCONG IRON WORKS v. DELAWARE, L. & W. R. CO.
• Court: New Jersey Supreme Court

76 A. 971

78 N.J.L. 717

MUSCONETCONG IRON WORKS

v. DELAWARE, L. & W. R. CO.

Court of Errors and Appeals of New Jersey.

June 20, 1910.

(Syllabus by the Court.)

Error to Supreme Court.

Action by the Musconetcong Iron Works against the Delaware, Lackawanna & Western Railroad Company. Judgment for defendant, and plaintiff brings error. Affirmed.

Vreeland, King, Wilson & Lindabury, for plaintiff in error.

M. M. Stallman, for defendant in error.

VOORHEES, J. This is a writ of error running to the Supreme Court to remove a judgment entered in favor of the defendant. The case was tried by the court without a jury upon an agreed state of facts. The declaration sets out that the defendant was a common carrier and that the plaintiff, on the 14th day of February, 1907, at the Hoboken terminal of the defendant, caused to be delivered to the defendant as such carrier, five cars of iron ore containing 260,200 pounds, to be carried by defendant to Netcong and delivered to the plaintiff, and although the defendant received the goods for the purpose, yet has not taken care of them or delivered them to the plaintiff, whereby the goods were lost.

The state of the case shows that there was a contract between the plaintiff and Naylor & Company for the purchase of ore; that the ore mentioned in the contract was delivered by the steamship Bellerby at the Hoboken terminal, "where said vessel could be unloaded direct into the cars of the defendant"; that a portion of the purchase price of the ore under the contract was paid by the plaintiff to Naylor on February 5, 1907. It seems that on the 2d day of March, 1907, the railroad agent exhibited to the plaintiff's agent, the "billing records" in the defendant's freight office at Netcong, showing the car numbers mentioned in the declaration as being consigned to the plaintiff, with the weights and contents as mentioned in the plaintiff's declaration; that on the 20th day of March, freight bills were issued by the defendant to the plaintiff for the freight for these same cars and numbers; that these freight bills were received from the defendant by the plaintiff on the 20th of March. Section 8 of the state of the case, however, alleges two dates as the receipt of this bill by the plaintiff, namely, the 20th of March and the 28th of March. It appears that no bill of lading was issued by the defendant for the five cars in question, and that said five cars were not in fact loaded with the ore in question, and were not delivered by the defendant to the plaintiff. The amount of ore short was 83 1/2 tous, valued at $392.03, and the freight paid to the defendant on them amounted to $37.13, which are the amounts sued for. After the inspection of the "billing records" by the plaintiff's agent on March 2d, the plaintiff paid, on March 4, 1907, to Naylor & Company, the balance due for the ore as per bill rendered.

The only question submitted and argued was that of estoppel. The ground of decision will therefore be confined to that aspect of the case. The plaintiff claims an estoppel arising out of the fact that defendant's "billing records" showed that the five cars had been consigned to the plaintiff, stating car numbers and contents, and that after such record had been so inspected by its agent, the plaintiff thereby was...