New v. Denison Clay Co.

• Decision Date: 07 July 1919
• Docket Number: 5187.
• Citation: 260 F. 70
• Parties: NEW et al. v. DENISON CLAY CO.
• Court: U.S. Court of Appeals — Eighth Circuit

260 F. 70

NEW et al. v. DENISON CLAY CO.

No. 5187.

United States Court of Appeals, Eighth Circuit.

July 7, 1919

Arthur Miller, of Kansas City, Mo., and Edward R. Jones and Ephraim H. Foster, both of Muskogee, Okl., for plaintiffs in error.

W. E Ziegler, of Coffeyville, Kan., for defendant in error.

Before SANBORN and STONE, Circuit Judges, and TRIEBER, District Judge.

SANBORN Circuit Judge.

The plaintiffs in this action are the receivers of the railroad and property of the Missouri, Oklahoma & Gulf Railway Company. On August 20, 1917, they commenced an action against the Denison Clay Company, a corporation, for $561.04 of underpayments for the transportation of building tile and starters, over its line of railroad, from Rex, Okl., to Durant, Okl., between May 10 and August 1, 1914. The defendant demurred to the complaint of the plaintiffs, its demurrer was sustained, and the action was dismissed, on the ground that it was barred by the statute of limitations of the state of Kansas, where the causes of action arose and the action was brought. The plaintiffs complain of this ruling.

The complaint in the court below set forth, in nine counts, nine alleged causes of action for the recovery of undercharges of freight for the transportation. These counts differed only in the amounts sought and the respective bills of lading, which were made parts of the respective counts and attached to the complaint. The averments of each count material to the question in this case were that the defendant delivered at Coffeyville, Kan building tile and starters, to the Missouri Pacific Railway Company on a certain day in July or August, 1914, consigned over its railroad and over the railroad of the Missouri Oklahoma & Gulf Railway Company, to Frier & Scott, at Durant, Okl.; that the Missouri Pacific Railway Company issued to the defendant a bill of lading for this shipment, a copy of which was attached to the complaint and made a part thereof; that the defendants were connecting and delivering carriers of the tile and starters; that they received them at Rex, Okl., and delivered them to Frier & Scott, at Durant, Okl., in July or August, 1914; that the freight charges for the transportation, which were specified by Southwestern Lines Tariff 44-H, I.C.C. 1042, on file with the Interstate Commerce Commission, were 20 cents per hundredweight, but that plaintiffs' agent collected only 10 cents per hundredweight; that this mistake resulted in an underpayment by the defendant of 10 cents per hundredweight on this shipment, which, with interest, the plaintiffs asked to recover.

By the bills of lading, made a part of the complaint, the Missouri Pacific Railway Company receipts for the tile and starters and 'agrees to carry to its usual place of delivery at said destination, if on its road, otherwise to deliver to another carrier on the route to said destination,' and the bills of lading contain stipulations that 'the owner or consignee shall pay the freight and all other lawful charges accruing on said property, and, if required, shall pay the same before delivery. ' The bills of lading were signed by both the initial carrier and the consignor. The demurrer was general. It was that no count in the petition stated facts sufficient to entitle the plaintiffs to the relief they sought, and the court below sustained it on the ground that the causes of action stated in the complaint appeared to be barred by the statute of limitations of the state of Kansas, which provide that--

'Civil actions, other than for the recovery of real property, can only be brought within the following periods, after the cause of action shall have accrued, and not afterwards:

'First. Within five years: An action upon any agreement, contract or promise in writing.

'Second. Within three years: An action upon contract, not in writing, express or implied; an action upon a liability created by statute, other than a forfeiture or penalty.'

General Statutes Kansas 1915, Sec. 6907.

The alleged causes of action accrued between July 1 and September 1, 1914, and this action was brought on October 20, 1917. There is no doubt, therefore, that the complaint fails to state a good cause of action upon a contract not in writing, express or implied, and upon a liability created by statute other than a forfeiture or penalty, because this action was not brought until more than three years after such causes of action, if any, accrued; and the only question in this case is: Does the complaint state good causes of action upon contracts or promises in writing?

'The bill of lading required to be issued by the initial carrier upon an interstate shipment,' says the Supreme Court, 'governs the entire transportation and thus fixes the obligations of all participating carriers to the extent that the terms of the bill of lading are applicable and valid. ' Georgia, Fla. & Ala. Ry. v. Blish Company, 241 U.S. 190, 194, 195, 36 Sup.Ct. 541, 543 (60 L.Ed. 948).

The bills of lading in this action contain an agreement by the defendant to pay the freight; but they do not state the amount or the rate of the freight, and it is contended that here was a fatal defect in them as written contracts. But the rate of this freight was in writing or print and published and was made certain beyond dispute, and beyond the power of the parties to the bill of lading to change it, by the tariff pleaded, and a mere multiplication of rate by weight would produce the amount. Interstate Commerce Commission Act as amended, United States Compiled Statutes 1916, Secs. 8564-8569; Texas & Pacific Ry. Co. v. Mugg, 202 U.S. 242, 243, 245, 26 Sup.Ct. 628, 50 L.Ed. 1011; Armour...