Richey & Gilbert Co. v. Northern Pac. Ry. Co.

• Decision Date: 29 May 1925
• Docket Number: No. 24569.,24569.
• Citation: 204 N.W. 27,163 Minn. 349
• Court: Minnesota Supreme Court
• Parties: RICHEY & GILBERT CO. v. NORTHERN PAC. RY. CO.

204 N.W. 27

163 Minn. 349

RICHEY & GILBERT CO. v. NORTHERN PAC. RY. CO.

No. 24569.

Supreme Court of Minnesota.

May 29, 1925.

Appeal from District Court, Hennepin County; H. D. Dickinson, Judge.

Action by the Richey & Gilbert Company against the Northern Pacific Railway Company. From judgment for defendant, plaintiff appeals. Affirmed.

Samuel A. Anderson and A. F. Storey, both of St. Paul, for appellant.

D. F. Lyons and D. R. Frost, both of St. Paul, for respondent.

LEES, C.

This is an action for damages caused by defendant's failure to furnish cars for plaintiff's use. Defendant moved for judgment on the pleadings, the motion was granted, and this appeal was taken from the judgment.

It appears from the pleadings that on October 16, 1916, plaintiff delivered to defendant's station agent at Yakima, Wash., a written order for refrigerator cars in which to ship boxed apples from Yakima to the Eastern markets, the first car to be furnished on November 6, 1916, and one daily thereafter until November 23d. Plaintiff had 11,340 boxes of apples in storage at Yakima and tendered them to defendant for transportation at the times when the cars should have been furnished, but none were furnished until December 18th and the delay caused the damage claimed by plaintiff.

A copy of the car order is attached to and made part of the pleadings. It is headed thus:

"Order for Cars.

"Agents will require shippers over their signature to supply full information hereon for cars wanted and will give each order a number. Check all orders daily; cancel immediately if requirements change. All unfilled orders expire at 3 p. m. Saturday and must be renewed and reference given to date previously ordered. Shippers will not be required to renew orders.

                (w) (Station
                From ____, Date____, 191__
                (X)
                To ____ at ____"
                

The dates when the cars were wanted are specified in the body of the order, and it concludes thus:

                  "This order rec'd at ____ m., ____, 191__
                                          ____, Shipper
                  "____, Agent Nor. Pac. Ry
                  "____ m., _____ 191__.           Time."
                

Certain statutes of limitation of the state of Washington are pleaded, among them one, which provides that, "An action upon a contract in writing or liability express or implied arising out of a written agreement", must be commenced within six years, and another, that "An action upon a contract or liability, express or implied, which is not in writing, and does not arise out of any written instrument", must be commenced within three years after the cause of action accrues.

Actions for injuries to the person or rights of another must also be brought within three years unless otherwise provided. This action was commenced more than three, but less than six years after the accrual of the several causes of action pleaded, hence the statute bars a recovery if the action is not founded on a written contract or on a liability arising out of a written agreement. The complaint alleges that the order for cars was signed by both parties by their lawful agents, and was delivered to defendant and...