Southern P. Co. v. Oregon Growers' Co-op. Ass'n

• Decision Date: 04 December 1928
• Citation: 272 P. 281,127 Or. 364
• Parties: SOUTHERN PAC. CO. v. OREGON GROWERS' CO-OP. ASS'N ET AL. SOUTHERN PAC. CO. v. OREGON GROWERS' CO-OP. ASS'N.
• Court: Oregon Supreme Court

272 P. 281

127 Or. 364

SOUTHERN PAC. CO. v. OREGON GROWERS' CO-OP. ASS'N ET AL. SOUTHERN PAC. CO. v. OREGON GROWERS' CO-OP. ASS'N.

Supreme Court of Oregon

December 4, 1928

Department 2.

Appeal from Circuit Court, Marion County; L. H. McMahan, Judge.

Separate actions by the Southern Pacific Company against the Oregon Growers' Co-operative Association and another, and the Southern Pacific Company against the Oregon Growers' Co-operative Association, consolidated for trial. From judgments against it in both actions, plaintiff separately appeals, which appeals were consolidated. Reversed and remanded, with directions.

G. L. Buland, of Portland (Ben C. Dey, of Portland on the brief), for appellant.

James G. Wilson, of Portland (John F. Reilly, of Portland, on the brief), for respondents.

RAND C.J.

The Southern Pacific Company brought two actions to recover transportation charges claimed to be due from the Oregon Growers' Co-operative Association. In one the United States Fidelity & Guaranty Company was joined as defendant because of an undertaking it had entered into guaranteeing payment of the charges. In the other the association was the sole defendant. The two actions were consolidated by stipulation of the parties and tried by a jury. The trial court gave judgment of nonsuit as to the surety company and entered judgment upon the verdicts against plaintiff in both actions. From these judgments plaintiff appealed, and, by a stipulation filed here, the separate appeals have also been consolidated.

There are numerous assignments of error, but, under our view of the law, the correctness of the trial court's rulings in sustaining the motion for nonsuit and in refusing to direct a verdict for plaintiff in both actions are the only questions necessary for decision.

In the first of said actions, plaintiff sought to recover $5,611.77 the transportation charges upon six carloads of pears shipped by the association in September and October, 1920, from Medford, Or., to Havana, Cuba. In the second action plaintiff sought to recover $1,603.46, the transportation charges upon two carloads of pears shipped by the association between the same points in August, 1920. In each case the amount sought to be recovered was the aggregate of the charges for freight, refrigeration, and war taxes upon the shipments from Medford to Key West, plus the ocean rate from that point to Havana. The transportation to Key West was interstate, and from that point to Havana was foreign commerce. The freight charges for the interstate carriage were those stated in the tariffs filed with the Interstate Commerce Commission, and the charges for refrigeration were also fixed by order of the Interstate Commerce Commission. The transportation from Key West to Havana was made on vessels operated by the Florida East Coast Car Ferry Company, and the rates therefor were not subject to the control of the Interstate Commerce Commission. They were however, the regular, established rates for such service. There can therefore be no dispute as to the amounts due if defendants are liable therefor.

Most of the facts were agreed. The pears were delivered for shipment by the association to plaintiff as the initial carrier, and were shipped at its request. None of the charges were prepaid or have since been collected. A separate bill of lading was issued upon each shipment, and each bill of lading was signed, "Oregon Growers' Co-operative Assn., Shipper. Per C. C. Lemmon," and also by an agent of plaintiff, and in each thereof the association was named as both consignor and consignee. It is agreed that the form used was what was known as "Uniform Bill of Lading--Standard form of straight bill of lading approved by the Interstate Commerce Commission by Order No. 787 of June 27, 1908. Southern Pacific Company Straight Bill of Lading--original--non-negotiable." But an agreed copy of such bills of lading was made a part of the stipulation of facts, and this copy shows that each of the bills of lading contained a direction to "deliver on shipper's written order only," followed by a further direction to "advise Alvarino & Alfonso." They each acknowledge receipt of the pears from the association, and stated that the pears were "consigned to the Oregon Growers' Co-operative Association, Advise Alvarino & Alfonso. Destination--Havana, State of Cuba," and contained a clause which provided that:

"The owner or consignee shall pay the freight and all other lawful charges accruing on said property, and, if required, shall pay the same before delivery."

They also contained the following clauses:

"If charges are to be prepaid, write or stamp here. 'To be Prepaid.' _____ Received $_____ to apply in prepayment of the charges on the property described hereon. ______ Agent or Cashier. Per _____ (The signature here acknowledges only the amount prepaid.) Charges Advanced: $_____."

None of these blanks above referred to were filled in by writing or otherwise.

It appears from the evidence of one of the officers of the association, who testified as a witness for defendants, that these bills of lading were first prepared and signed by an agent of the association, and were then delivered to and signed by an agent of plaintiff. Hence there can be no contention that the bills of lading contained any recital which was not understood and agreed to by the association.

It is stipulated:

"That prior to the delivery of said shipments to the plaintiff for transportation the defendant Association sold, and Alvarino & Alfonso, of Havana, Cuba, bought, among others, said eight carloads of pears, to be paid for f. o. b. Medford, and said cars were loaded and shipped by said defendant Association in fulfillment of said sale." And that, prior thereto, Alvarino & Alfonso had established credit with the Equitable Trust Company of New York for the payment of the pears when delivered to the carrier for shipment, and that, upon the loading of the cars and the issuance of the bills of lading, the association drew drafts in favor of the United States National Bank of Salem, Or., for the purchase price of the pears, and attached thereto a receipted invoice together with a copy of the bill of lading covering such shipments, and that, upon presentation thereof to the Equitable Trust Company, the drafts were paid, but such drafts did not include any charge for transportation. It is further stipulated that, pursuant to the instructions of Alvarino & Alfonso, the association also forwarded the original bills of lading upon each shipment, together with a receipted invoice for the purchase price of the pears, to Kirtland & Gaither at Key West, who were the forwarding agents of Alvarino & Alfonso, and that, upon arrival of the pears at Key West, Kirtland & Gaither, as such forwarding agents, "presented to the agent of the Florida East Coast Railway Company the original bills of lading and receipted invoices showing that said pears had been sold to Alvarino & Alfonso, and demanded export bills of lading therefor from Key West, Fla., to Havana, Cuba, but the said agent of said Florida East Coast Railway Company refused to issue said exchange export bills of lading or to deliver said shipments without an order from said defendant Association so to do; that thereupon said Kirtland & Gaither wired said defendant Association as follows:

" 'Key West Florida 6:10 p. m. Oct. 5, 1920.

" 'Oregon Growers Coop. Assn., Salem, Org.

" 'Your letter September twenty fifth file forty seven transmitting documents Pennsylvania ten twelve two one. Railroad agent here refuse exchange ocean lading without delivery order from you in favor Alvarino and Alfonso. Wire quick release shipment, documents covering future cars should be accompanied with delivery orders favor ultimate consignee when your interests in shipment protected prompt handling necessary effect clearance.

" 'Kirtland and Gaither.'

"That thereupon the defendant Association telegraphed the agent of the Florida East Coast Railway Company as follows:

" 'October 6, 1920.

" 'Agent Florida East Coast Railway Co., Key West, Florida.

" 'Deliver to Kirtland and Gaither Agents for Alvarino and Alfonso Company, Havana, Cuba, following cars consigned ourselves notify Alvarino quick Pacific fifty two seventy six Pacific thirteen six seventy two Pennsylvania ten twelve twenty one and Lehigh Valley thirty six two eighteen.

" 'Oregon Growers Cooperative Assn.' "

These two telegrams referred to four of the carloads of pears mentioned and described in the first cause of action, and, as to the other two carloads referred to therein, it is agreed:

That, on October 9, 1920, the association sent two telegrams to the local freight agent of the Florida East Coast Railway Company, directing it:

"Upon payment of all charges and surrender of this written order please deliver Car (described by number) contents Comice pears to Kirtland and Gaither, Key West, Florida, without surrender of original bill of lading.

"Oregon Growers Cooperative Assn.

"By J. H. Frazier."

That, after said telegrams had been forwarded and received, Kirtland & Gaither surrendered the original bills of lading upon the six cars to the Florida East Coast Railway Company, and that company issued and delivered to them export bills of lading "showing the same shipper and consignee in each case as was shown on the domestic bills of lading issued for said cars at Medford, Oregon, and said shipments were further transported by the boats of the Florida East Coast Car Ferry Company from Key West, Florida, to Havana, Cuba, and were delivered to Alvarino & Alfonso."

As to the two cars mentioned in plaintiff's second cause of action, the statement of facts recites that upon their arrival at Key West export bills of lading were...