Raleigh & G.R. Co. v. Swanson
| Decision Date | 20 December 1897 |
| Citation | 28 S.E. 601,102 Ga. 754 |
| Parties | RALEIGH & G. R. CO et al. v. SWANSON. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. A contract entered into between a railroad company and a ticket broker, whereby the latter was enabled to sell tickets to individuals, over the company's lines leading from this to another state, at less than the established rate for the sale of tickets by its regular agents between the same points, and for the same accommodations, is in violation of the act of congress "to regulate commerce," approved February 4, 1887.
2. A party to such a contract cannot recover in an action which does not seek to disaffirm, but to enforce, it, by suit for its breach.
3. A demurrer by the defendant upon the ground that such a suit set forth no cause of action should have been sustained.
Error from city court of Atlanta; J. D. Berry, Judge.
Action by J. M. Swanson against the Raleigh & Gaston and Seaboard & Roanoke Railroad Companies for breach of contracts. From a judgment sustaining a demurrer to the answer, defendants bring error. Reversed.
Vasser Woolley and Erwin & Brown, for plaintiffs in error.
W. R Hammond and L. P. Skeen, for defendant in error.
The questions made in this case arose upon the following state of facts: Swanson brought an action against the Raleigh & Gaston and Seaboard & Roanoke Railroad Companies, as joint lessees of the Georgia, Carolina & Northern, the Carolina Central and the Raleigh & Augusta Railroads, which constitute the system known as the Seaboard Air Line, extending from Atlanta, Ga., to Norfolk, Va., for breach of contracts. In his petition he alleged, in substance, as follows: He being a ticket broker in Atlanta, Ga., and in position to control a great amount of business over the various roads centering there and leading therefrom, defendants, desiring to have tickets over their system handled by him, procured the Suwanee River Railroad Company, a corporation of Florida, to issue a large number of tickets from Ellaville, in that state, via Atlanta, and over the Seaboard Air Line to Norfolk, Va., and others to Washington, D. C., via Weldon, N C., which tickets were not to be used from Ellaville to Atlanta, but only from Atlanta to the points above stated. Defendants agreed with plaintiff that, if he would purchase and handle these tickets, they would honor them for passage over their system of railroads to the points named. In pursuance of said agreement, he did purchase a large number of said tickets from the Suwanee River Railroad Company, at such prices as were agreed upon, and as would enable him to sell the same for passage over the Seaboard Air Line below the regular rates established by defendants and make a profit thereon, in the regular course of business as a ticket broker, and sold a great number of said tickets from time to time, all of which were duly honored by defendants over their said lines until September, 1894, when they notified him that said tickets would be withdrawn, and that they would no longer honor them. He then had on hand, undisposed of, a large number of said tickets, which he had purchased from the Suwanee River Railroad Company in accordance with this agreement with defendants, for which he had paid $909, and which were therefore worthless to him, and of no value whatever. In the same month, and shortly after the date when the tickets were so withdrawn, he notified defendants that he held them, and that they were worthless, and demanded that defendants should make them good, and reimburse him in the sum that he had paid for them, which defendants failed and refused to do, but, recognizing their liability to him, proposed that if he would take the tickets he then had on hand, and get the Suwanee River Railroad Company, in lieu thereof, to issue what are known as "exchange orders" on the Seaboard Air Line, each order to call for a first-class ticket from Atlanta to Norfolk over the Seaboard Air Line, defendants would then honor, from time to time, as might be presented to them by plaintiff, as many of said exchange orders as would be necessary, at the rate of $9 each, to cover the value of the tickets which he then had on hand. This agreement was entered into on condition that he would guaranty to hold the defendants harmless against loss, should the Suwanee River Railroad Company fail and refuse to pay and settle with defendants for said exchange orders. Plaintiff acceded to all these demands of defendants, obtained such exchange orders from the Suwanee River Railroad Company by surrendering to it said tickets which he then had on hand, and tendered one of said exchange orders, together with his written guaranty to defendants that he would hold them harmless against loss should the Suwanee River Railroad Company fail to settle with them for said orders, and demanded of defendants a ticket from Atlanta to Norfolk over the Seaboard Air-Line, in accordance with the agreement before stated. Defendants accepted said written guaranty of plaintiff, dated February 7, 1895, and now have the same. The defendants refused to honor said exchange order, but retained it, and refused to deliver to plaintiff a ticket therefor in accordance with said agreement, but, instead, notified plaintiff that they would not honor any of said exchange orders, and would not issue to plaintiff any tickets therefor, as they had agreed to do, until the Suwanee River Railroad Company had made good to them certain arrearages which had accrued prior to the time of the contract between plaintiff and defendants in reference to said exchange orders. Plaintiff, by reason of the breach of said contract, has been damaged $1,212, because the tickets which he would have received under said contract for said exchange orders were worth to him, and would have been sold for, $12 apiece, and he would have been entitled to 101 tickets under said contracts. Plaintiff, by amendment to his declaration to meet one of the grounds of the demurrer of the defendants, more specifically alleged the number of tickets on hand, and the price at which they were bought and the price at which they could have been sold. To this petition the defendants demurred, among others, upon the ground, that the contracts declared on were illegal, and contrary to public policy and the laws of the United States and the state of Georgia, and that it therefore set forth no cause of action. This demurrer was overruled by the trial judge, and we are now to consider whether or not he erred in so doing.
1. Section 2 of the act of congress entitled "An act to regulate commerce," approved February 4, 1887 (24 Stat 379), provides as follows: "That if any common carrier subject to the provisions of this act shall, directly or indirectly, by any special rate, rebate, drawback, or other device, charge, demand, collect, or receive from any person or persons a greater or less compensation for any service rendered, or to be rendered, in the transportation of passengers or property, subject to the provisions of this act, than it charges, demands, collects or receives from any other person or persons for doing for him or them a like and contemporaneous service in the transportation of a like kind of traffic under substantially similar circumstances and conditions, such common carrier shall be deemed guilty of unjust discrimination, which is hereby prohibited and declared to be unlawful." Section 10 of the same act, as amended by the act of March 2, 1889 (25 Stat. 857), provides as follows: "That any common carrier subject to the provisions of this act, or, whenever such...
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