Robert S. Armstrong & Bros. Co. v. Rowland
| Decision Date | 08 November 1928 |
| Docket Number | 7 Div. 366 |
| Citation | 22 Ala.App. 613,118 So. 502 |
| Court | Alabama Court of Appeals |
| Parties | ROBERT S. ARMSTRONG & BROS. CO. v. ROWLAND. |
Appeal from Circuit Court, Clay County; E.S. Lyman, Judge.
Action in assumpsit by Robert S. Armstrong & Bros. Company against R. G. Rowland. From a judgment for defendant, plaintiff appeals. Affirmed.
Pruet & Glass, of Ashland, for appellant.
A.L. Crumpton, of Ashland, for appellee.
The defendant sold and shipped from Lineville, Ala., to the plaintiff at Atlanta, Ga., a carload of iron pipe. The terms of sale were 55 cents per foot, f.o.b. Atlanta. The shipment was made: "To order, notify plaintiff." The defendant upon shipment drew a draft for the price of the pipe, less $166.15, estimated for freight, and attached same to the bill of lading, which was sent through the usual channels to plaintiff, and paid by it. When the shipment arrived at its destination, the delivering carrier, the Atlanta & West Point Railroad, demanded and received of plaintiff, as freight on the shipment, $170.20. The plaintiff then notified defendant of the payment, and demanded of defendant the difference to wit $54.05. Instead of a prepayment of the freight by defendant, the payment was made at destination by plaintiff at the request of defendant.
Undoubtedly the action for money had and received is the proper remedy and the plaintiff would be entitled to recover, if it had paid an amount for which the defendant was liable. Therein lies the issue.
The general rule is that the consignor, consignee, and carrier of freight are alike charged with notice of the lawful rate as fixed by the Interstate Commerce Commission, and no excuse which operates as an evasion of that rate is at law a defense of a proved violation of such rate. Mistake, inadvertence honest agreement, and good faith are alike unavailing. Emerson v. C. of G. Ry. Co., 196 Ala. 280, 72 So. 120, L.R.A.1916F, 120. So it would make no difference what rate was named in the bill of lading in this case, or what the agent of initial carrier told defendant the rate was; under the contract of sale of the pipe, defendant was liable to pay the legal rate as fixed by law, and, although the bill of lading fixed the amount at $116.15, if the legal rate was $170.20, and this amount was paid by plaintiff, then defendant is liable in this action.
While the defendant was obligated to pay the freight on the carload of pipe, the obligation did not exceed the lawful rate as fixed by the Interstate Commerce Commission, and the burden was on the plaintiff to prove the correctness of the charge of $170.20, which it paid. To do this it offered as a witness Otho Dean, who testified: "I am with the Ashland Railroad," whether as president or a section foreman does not appear. At any rate, he does not qualify as to his knowledge of rates. If he had qualified as a rate expert, his testimony would have been admissible. Shepherd Lumber Co v. A.C.L.R. Co., 216 Ala. 89, 112 So. 323. He further said: "I have the Southern classification rate here," and offered to testify from that. As has been seen, if this witness had qualified as an expert, he might have so testified, but, not having so qualified, the court properly sustained the defendant's objection. This witness was asked: "Is this (indicating book in witness' hand) the Southern classification rate book as published by them?" This question was objected to, and objection sustained. The court does not judicially know what the Southern classification rate book is, nor does it judicially know who the "them" is referred to in the question. The published rates as made and published by the Interstate Commerce Commission would have been admissible, but, to be admissible, they must have...
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