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

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

John 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

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 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 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 'property will be carried at tariff rates,' that is, according to the rates established by the published classification. Acceptance and receipt of goods by a consignee under a bill of lading of this tenor is strong evidence of an implied promise on his part to pay the freight. It is enough to support a finding to that effect. Blanchard v. Page, 8 Gray, 281, 291; Old Colony R. R. v. Wilder, 137 Mass. 536; Erie R. R. v. Wanaque Lumber Co., 75 N. J. Law, 878, 69 A. 168. It is not necessary to consider what would be the rights of the parties if the plaintiff actually had known before delivery of the goods by it that the defendant was agent of the Delaware owner, for under the circumstances disclosed here there was evidence sufficient to warrant the finding that the defendant, even though an agent, had impliedly promised to pay the lawful freight. Boston & Maine R. R. v. Whitcher, 1 Allen, 497. The facts in the case at bar distinguish it from Central R. R. v. MacCartney, 68 N. J. Law, 165, 152 A. 575, especially relied on by defendant.

2. The defendant might have been found to have promised by implication to pay the freight rate lawfully established under the interstate commerce act. The aim of that act was to secure for each and every shipper of goods in interstate commerce absolute equality of reasonable rates, uniform in application, without discrimination or preference. The railroad and the shipper are bound inexorably to follow the rate published. No excuse, which operates as an evasion of that rate, has any standing as matter of law in defense of a proved violation of such rate. Mistake, inadvertence, honest agreement and good faith are alike unavailing. Hooker v Boston & Maine R. R.,...

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