Pere Marquette Ry. Co. v. Tifton Produce Co.

• Decision Date: 23 January 1934
• Docket Number: 23055.
• Citation: 172 S.E. 727,48 Ga.App. 286
• Parties: PERE MARQUETTE RY. CO. v. TIFTON PRODUCE CO.
• Court: Georgia Court of Appeals

172 S.E. 727

48 Ga.App. 286

PERE MARQUETTE RY. CO. v. TIFTON PRODUCE CO.

No. 23055.

Court of Appeals of Georgia, First Division

January 23, 1934

Syllabus by the Court.

Maintenance in Georgia court of suit by attachment, based on accord and satisfaction of plaintiff's claim for nonresident railroad's breach of contract for carriage held not undue interference with interstate commerce or operations of railroad, notwithstanding railroad had no place of business or line in Georgia (Civ. Code 1910, §§ 4330, 5055; Interstate Commerce Act, 49 USCA § 1 et seq., especially § 3, 49 USCA § 3, and § 20 (11), as amended, 49 USCA § 20 (11).

Finding that attachment suit against nonresident railroad was based on accord and satisfaction of claim for breach of contract of carriage held authorized, under pleadings, evidence and agreement of counsel.

1. If a nonresident railroad company, having no place of business nor owning or operating a line of railroad in Georgia, as a matter of fact has entered into an accord and satisfaction as a compromise adjustment of claims against it for damages, and has carried out the same to the extent of making a part settlement, the breach of contract for carriage or suit for damages is no longer involved. It has become a liquidated demand, and a resident of Georgia, the holder of such a claim, may invoke the remedy of attachment, provided by Georgia statute, when property of the nonresident debtor is found within the limits of the state.

2. Under the pleadings, the evidence, and the agreement of counsel, the judge, sitting without a jury, was authorized to find that the action was based on accord and satisfaction and that the trial thereof in Tift superior court would not materially interfere with interstate commerce or with the operations of the defendant railway company; and he did not err in overruling the motion to dismiss the attachment or in dismissing the plea to the jurisdiction.

Error from Superior Court, Tift County; R. Eve, Judge.

Attachment proceeding by the Tifton Produce Company against the Pere Marquette Railway Company. To review a judgment overruling its motion to dismiss the attachment and its plea to the jurisdiction, defendant brings error.

Affirmed.

N. F Crawford, of Detroit, Mich., and R. D. Smith, of Tifton, for plaintiff in error.

Robt. R. Forrester, of Tifton, for defendant in error.

BROYLES Chief Judge (after stating the foregoing facts).

The greater portion of the testimony (by affidavit) of the sole witness for the railway company deals with what the defendant contends and denies and with the law rather than with actual facts. However, had the testimony of this witness been in direct conflict with that of the plaintiff, the court, under the agreement of counsel that the judge should pass upon the issues without the intervention of a jury, could, and evidently did, accept the testimony of the plaintiff, and its finding is supported by the evidence. The testimony for the plaintiff showed that the defendant railway company made a compromise agreement to pay the plaintiff $410, and that one Taylor was the only witness for the defendant company who knew about the agreement; and the court accepted these facts as true in determining the issues raised and the jurisdiction of the court.

We do not think that a trial of the issues raised by the pleadings would appreciably interfere with interstate commerce. The court had the right to determine the facts, and the plaintiff proved to the satisfaction of the court that its action was based upon a compromise agreed upon and partially carried out. This being true, the only witness necessary to be called by the defendant railway company was the officer or agent who represented it in making the compromise agreement. Even if this one witness was still connected with the defendant company, his presence at the trial in Georgia would cause little inconvenience to interstate commerce, and, if he is no longer connected with the defendant company, as indicated by the evidence, his presence at the trial would in no way interfere with the defendant's interstate operations.

The cases cited by plaintiff in error are differentiated by their facts from the instant case. In the case at bar the plaintiff did not change its residence to gain an advantage as to jurisdiction. It was a resident of Georgia at the time of the issuance of the bills of lading, at the time of the compromise agreement, and at the time of the filing of the declaration in attachment. "A compromise or mutual accord and satisfaction is binding on both parties," according to Georgia law (Civil Code 1910, § 4330), and the plaintiff resorted to the remedy provided by Georgia law viz. attachment, since "the debtor resides out of the State." Civil Code 1910, § 5055. We agree with the ruling of the trial judge in his order overruling the motion to dismiss the petition for want of jurisdiction, which is in part as follows: "It was agreed by and between counsel representing the parties litigant, with the consent of the presiding judge, that the matter be submitted to the court for determination of the question of jurisdiction; the defendant having moved for a dismissal. *** Evidently for the purpose of the motion or general demurrer the defendant in the case has admitted the properly pleaded allegations of the petition. Very plainly the plaintiff is seeking to recover under an alleged compromise or mutual accord and satisfaction binding on both parties, as provided for in section 4330 of Park's Code of Georgia. This being true, it is evident that this is not an ordinary suit against a terminal carrier for damages or breach of contract of carriage; in fact it is stated in the petition, that there was a definite compromise for a fixed amount and the payment of a portion thereof. We are aware of the rulings of the United States court in the cases of D. & R. G. W. v. Terte, 284 U.S. page 284, 52 S.Ct. 152, 76 L.Ed. 295, and Michigan Central R. Co. v. Mix, 278 U.S. 492, 49 S.Ct. 207, 73 L.Ed. 470, and other cases of like character; but it is the opinion of this court that the rules therein laid down do not and should not apply to a state of facts similar to those now before us. If a railroad company, as a matter of fact, has entered into an accord and satisfaction, and has carried out the same to the extent of making a part settlement, the breach of contract of carriage or suit for damages is no longer involved. It has become a liquidated demand; and what reason is there why a resident of Georgia, the holder of a note or other...