St. Louis Southwestern Ry. Co. v. Painton

• Decision Date: 13 August 1925
• Docket Number: No. 3754.,3754.
• Citation: 275 S.W. 55
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. v. PAINTON.
• Court: Missouri Court of Appeals

275 S.W. 55

ST. LOUIS SOUTHWESTERN RY. CO. v. PAINTON.

No. 3754.

Springfield Court of Appeals. Missouri.

August 13, 1925.

Appeal from Circuit Court, Stoddard County; W. S. C. Walker, Judge.

Action by the St. Louis Southwestern Rail, way Company against A. Painton. From a judgment for the plaintiff, defendant appeals. Reversed and remanded, with directions.

Casper M. Edwards, of Malden, for appellant.

John R. Turney and A. H. Kiskaddon, both of St. Louis, and Wammack & Welborn, of Bloomfield, for respondent.

BRADLEY, J.

This suit is on a, contract to recover for freight charges, and was tried before the court without a jury. Plaintiff recovered, and defendant appealed.

The suit was filed against M. C. Townley and A. Painton, doing business under the firm name of Townley & Painton. Townley died before trial, and dismissal was made as to him, and the cause proceeded against Painton. It is alleged that, by virtue of a certain contract entered into between plaintiff and defendants on October 8, 1916, defendants were indebted to plaintiff in the sum of $2,886.35. Recovery is sought for operations under the contract from October 8, 1916, to September 27, 1917.

Defendant's chief defense is that the tariff upon which the contract was based was not filed with the Public Service Commission, as required by law, and was therefore illegal and void, and that said tariff would not support a valid contract. No reply appears in the record, but no point is made in that respect. Defendant makes many assignments, but the decisive question presented is plaintiff's right to recover in a suit on the contract.

The firm of Townley & Painton, at the time the contract was executed, was operating at Malden, Mo., a factory or mill wherein they manufactured shingles, mop handles, chair stock, etc. The contract sued on is as follows:

                  "Form 2998. St. Louis Southwestern
                              Railway Co
                      "Rough Material Contract
                

"Agreement entered into this 8th day of October, 1916, by and between St. Louis Southwestern Railway Company and Townley & Painton, a copartnership composed of M. C. Townley and A. Painton, (hereinafter called applicant), witnesseth:

"In consideration of special rough material rates as provided in St. Louis Southwestern Railway Company Tariff No. _____, or reissues thereof, to be granted to said applicant under the terms hereof, it is hereby agreed by said applicant that the entire finished product of said rough material received by the applicant over the line of said railway company, which shall not be less than the percentage proportion specified in said tariff or reissues thereof, shall be reshipped via the St. Louis Southwestern Railway to destinations beyond the switch limits of the manufacturing point in accordance with all the provisions of said tariff.

"It is further agreed that the St. Louis Southwestern Railway Company is entitled to the full local rate in effect from point of origin to the manufacturing point on the rough forest products or rough materials specified in the above mentioned tariff or reissues thereof, until the finished or manufactured products have been shipped via the St. Louis Southwestern Railway Company, as above stated. The agent of the St. Louis Southwestern Railway Company will prepare monthly reports of rough forest products inbound and finished products outbound, and present such statements to the applicant for cheek and certification. When certified by the applicant these reports will be rechecked by the accounting department of the St. Louis Southwestern Railway Company and the correct weights inserted for the outbound shipments, and, when corrected, the originals of these reports will be returned to the applicant for his file, that he may maintain a correct tonnage record of his in and out bound shipments, and said applicant hereby agrees to abide by the tonnage record so provided in. settlement under this contract.

"Said applicant hereby further agrees to furnish to the St. Louis Southwestern Railway Company, or its agent, on or before July 10th of each year, a certified statement showing the tonnage of rough forest products on hand, also the tonnage of rough forest products represented by the finished products on hand for shipment via the St. Louis Southwestern Railway as of June 30th of that year, and to furnish statement showing the same information on such other dates as the St. Louis Southwestern Railway Company may require.

"After credit is allowed for tonnage on hand, should there be any deficit in the shipments of the product of rough material received via the St. Louis Southwestern Railway, said applicant hereby agrees to accept bill and promptly pay the St. Louis Southwestern Railway Company on the basis of the full local rates as per tariffs legally in effect at date of movement, on the inbound forest products for which finished products have not been shipped, or are not on hand to be shipped via the St. Louis Southwestern Railway, or are not still on hand as rough forest products awaiting manufacture.

"At the termination of this agreement, should there be any deficit in shipments of the products made from rough material received via the St. Louis Southwestern Railway, said applicant agrees to accept bill and promptly pay the St. Louis Southwestern Railway Company on the basis of the full local rates as per tariffs legally in effect at date of movement on all the inbound rough material for which the agreed percentage of finished products has not been shipped via the St. Louis Southwestern Railway.

"It is hereby expressly agreed that this agreement shall remain in full force and effect, notwithstanding any...