Pinehurst Peach Co., Inc. v. Norfolk Southern R. Co.

• Citation: 159 S.E. 359,201 N.C. 176
• Decision Date: 27 June 1931
• Docket Number: 432.
• Parties: PINEHURST PEACH CO., Inc., v. NORFOLK SOUTHERN R. CO.
• Court: United States State Supreme Court of North Carolina

159 S.E. 359

201 N.C. 176

PINEHURST PEACH CO., Inc.,
v.
NORFOLK SOUTHERN R. CO.

No. 432.

Supreme Court of North Carolina

June 27, 1931

Appeal from Superior Court, Moore County; McElroy, Judge.

Action by the Pinehurst Peach Company, Incorporated, against the Norfolk Southern Railroad Company. From the judgment, plaintiff appeals.

Affirmed.

Plaintiff alleged that prior to August, 1926, in accordance with the rules of defendant, he placed an order in writing for four cars for the use of plaintiff in shipping peaches, said cars to be placed as is usual and customary at the siding at plaintiff's peach orchard in West End for use in shipping peaches on August 6, 1926; and said order for said four cars was accepted by the defendant, and the plaintiff was assured said cars would be furnished and placed as ordered for use in shipping peaches on said August 6, 1926.

Plaintiff also alleged that prior to August 6, 1926, he placed an order in writing for five cars, to be furnished as above set out, for use in shipping peaches on August 6th, which said order was accepted by the defendant.

Plaintiff further alleged that on August 5, the defendant only furnished two cars on the four-car order and only four cars on the five-car order, one of which was used for local purposes.

Plaintiff further alleged that by reason of the failure of defendant to comply with the contract, he lost four carloads of peaches, of the net value of $1,436.17.

The defendant filed answer alleging that the orders were placed with the defendant on the 4th day of August for refrigerator cars to be iced and furnished on August 5th, and that after exercising due diligence, was able to obtain only three of such cars, and that two other such cars were properly iced and placed on August 7th, and that in complying with the written orders in both instances the defendant had exercised due diligence.

The defendant further pleaded the Interstate Commerce Act (49 USCA § 1 et seq.), and also C. S. § 3522, and alleged that the cause of action was based upon an express contract to furnish cars on a specified date, and that such contracts were invalid under the federal act, as all of said cars were to be used in interstate commerce.

The cause came on for hearing at the September term, 1930, and the defendant demurred ore tenus upon the ground that the express contract alleged by the plaintiff was forbidden by the federal statute. The demurrer was sustained and plaintiff was allowed to...