New York, N.H. & H.R. Co. v. York & Whitney Co.

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtRUGG, C.J.
Citation102 N.E. 366,215 Mass. 36
Decision Date24 May 1913
PartiesNEW YORK, N.H. & H. R. CO. v. YORK & WHITNEY CO.

215 Mass. 36

102 N.E. 366

NEW YORK, N.H. & H. R. CO.
v.
YORK & WHITNEY CO.

Supreme Judicial Court of Massachusetts, Suffolk.

May 24, 1913


[102 N.E. 367]

COUNSEL

John [215 Mass. 41] L. Hall, Arthur W. Blackman, and Stuart C. Rand, all of Boston, for plaintiff.

Adams & Blinn, Amos L. Taylor, and Herbt. P. Ware, all of Boston, for defendant.

OPINION [215 Mass. 37]

RUGG, C.J.

This is an action to recover a balance of freight charges which through the carrier's mistake had not been claimed or collected at the time of delivery of goods. The case was submitted to the superior court on an agreed statement of facts with power to draw proper inferences. The material points are that sweet potatoes were shipped by one Culver from Delmar in the state of Delaware to the defendant, a dealer and commission merchant in large business at Boston. The extent of the defendant's business was not fully known to the plaintiff. The goods were shipped to the defendant as commission merchant, but this information had not been expressly conveyed to the plaintiff. Upon arrival in Boston the goods were delivered to the defendant without prior request or mention of payment of freight, the defendant being upon the plaintiffs credit list and freight bills being sent it weekly. Before delivery the defendant was told by plaintiff that the freight was $102.30, and this amount was subsequently paid and [215 Mass. 38] charged by the defendant in settlement with its consignor. Several months later it was discovered that a mistake had been made in this statement of the amount due and collected for freight, and that the lawful rate established by the tariff filed and published in accordance with the Interstate Commerce Act (Act Feb. 4, 1887, c. 104, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3154]) had not been collected. The reason was that the goods had been erroneously classified, and that therefore the rate legally due was higher than that at first charged. It is to recover this difference between the rate collected and that lawfully due that this action is brought.

The bill of lading on which the goods were shipped contained this clause: 'The owner or consignee shall pay the freight at the rate herein stated and all other charges accruing on said property before delivery; * * * and if, upon inspection, it is ascertained that the articles shipped are not those described in this bill of lading the freight charges must be paid upon the articles actually shipped and at the rates and under the rules provided for by the published classifications.' The superior court granted requests of defendant that 'failure to collect the lawful rate was through a mutual mistake of fact' and that 'as between the plaintiff and the defendant the only right the plaintiff had was a lien upon the goods,' refused numerous other requests, found for the plaintiff and reported the case.

1. The general finding for the plaintiff stands upon the same ground as a verdict of a jury, and cannot be overturned unless unsupported by substantial evidence. Bailey v. Marden, 193 Mass. 277, 79 N.E. 257. It is evidence of ownership that one is named as consignee in a bill of lading. Rosenbush v. Bernheimer, 211 Mass. 146, 149, 97 N.E. 984, Ann. Cas. 1913A, 1317. The defendant was named as consignee in the bill of lading of the goods in question. No other owner was named therein. The fact that he was commission merchant was not expressly brought to the knowledge of the defendant. The general finding in favor of the plaintiff may be presumed to have involved the subsidiary conclusion that such information was not impliedly or inferentially brought to its attention. It follows from this that the general finding for the plaintiff may be supported on the ground that the plaintiff in the light of all the facts known to it, rightly treated the defendant as the owner. It cannot be said that such finding was unwarranted.

Moreover, the defendant received the freight under a bill of [215 Mass. 39] lading, one of the terms of which was that the consignee should pay the freight at the rate stated. No special rate was stated in the bill of lading, but on its face is printed the provision, that unless otherwise provided the...

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28 practice notes
  • Lipsitz v. Parr, No. 112.
    • United States
    • Court of Appeals of Maryland
    • February 15, 1933
    ...Hibbard, Spencer, Bartlett & Co. v. Chicago, 173 Ill. 91, 50 N. E. 256, 258, 40 L. R. A. 621; New York, etc., R. Co. v. York, etc., Co., 215 Mass. 36, 102 N. E. 366, 368; Monson v. Tripp, 81 Me. 24, 16 A. 327, 10 Am. St. Rep. 235; Board of Com'rs of Ramsey County v. Nelson, 51 Minn. 79, 52 ......
  • Beacon Hill Civic Ass'n v. Ristorante Toscano, Inc.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • March 25, 1996
    ...Haverhill Gas Co. v. Findlen, 357 Mass. 417, 420, 258 N.E.2d 294 (1970), quoting New York, N.H. & H.R.R. v. York & Whitney Co., 215 Mass. 36, 40, 102 N.E. 366 (1913). In short, "[e]stoppel cannot rest on an illegal contract." New York, N.H. & H.R.R., [422 Mass. 325] Accordingly, we vacate t......
  • State ex rel. Blaine v. Wis. Tel. Co.
    • United States
    • United States State Supreme Court of Wisconsin
    • April 29, 1919
    ...v. Int. Coal Co., 230 U. S. 184, 197, 33 Sup. Ct. 893, 57 L. Ed. 1446, Ann. Cas. 1915A, 315;N. Y., N. H. & H. R. R. v. York & Whitney Co., 215 Mass. 36, 40, 102 N. E. 366. The defendant asserts here that it is changing such established rates by virtue of an order given to it so to do by the......
  • D.S. Pate Lumber Co. v. Southern Ry. Co., 19407
    • United States
    • United States State Supreme Court of Mississippi
    • July 9, 1917
    ...Schenberger v. Union P. R. Co. (Kan.), 113 P. 433, 33 L. R. A. (N. S.) 391, and note; New York, N. H. & H. R. R. Co. v. York & Whitney, 215 Mass. 36, 102 N.E. 366; Ga. R. Co. v. Creety, 5 Ga.App. 424, 63 S.E. 528; Central R. R. of N. J. v. Mauser, 241 Pa. 603, 88 A. 791, 49 L. R. A. (N. S.)......
  • Request a trial to view additional results
28 cases
  • Lipsitz v. Parr, No. 112.
    • United States
    • Court of Appeals of Maryland
    • February 15, 1933
    ...Hibbard, Spencer, Bartlett & Co. v. Chicago, 173 Ill. 91, 50 N. E. 256, 258, 40 L. R. A. 621; New York, etc., R. Co. v. York, etc., Co., 215 Mass. 36, 102 N. E. 366, 368; Monson v. Tripp, 81 Me. 24, 16 A. 327, 10 Am. St. Rep. 235; Board of Com'rs of Ramsey County v. Nelson, 51 Minn. 79, 52 ......
  • Beacon Hill Civic Ass'n v. Ristorante Toscano, Inc.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • March 25, 1996
    ...Haverhill Gas Co. v. Findlen, 357 Mass. 417, 420, 258 N.E.2d 294 (1970), quoting New York, N.H. & H.R.R. v. York & Whitney Co., 215 Mass. 36, 40, 102 N.E. 366 (1913). In short, "[e]stoppel cannot rest on an illegal contract." New York, N.H. & H.R.R., [422 Mass. 325] Accordingly, we vacate t......
  • State ex rel. Blaine v. Wis. Tel. Co.
    • United States
    • United States State Supreme Court of Wisconsin
    • April 29, 1919
    ...v. Int. Coal Co., 230 U. S. 184, 197, 33 Sup. Ct. 893, 57 L. Ed. 1446, Ann. Cas. 1915A, 315;N. Y., N. H. & H. R. R. v. York & Whitney Co., 215 Mass. 36, 40, 102 N. E. 366. The defendant asserts here that it is changing such established rates by virtue of an order given to it so to do by the......
  • D.S. Pate Lumber Co. v. Southern Ry. Co., 19407
    • United States
    • United States State Supreme Court of Mississippi
    • July 9, 1917
    ...Schenberger v. Union P. R. Co. (Kan.), 113 P. 433, 33 L. R. A. (N. S.) 391, and note; New York, N. H. & H. R. R. Co. v. York & Whitney, 215 Mass. 36, 102 N.E. 366; Ga. R. Co. v. Creety, 5 Ga.App. 424, 63 S.E. 528; Central R. R. of N. J. v. Mauser, 241 Pa. 603, 88 A. 791, 49 L. R. A. (N. S.)......
  • Request a trial to view additional results

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