Sultan Ry. & Timber Co. v. Great Northern Ry. Co.

• Decision Date: 02 June 1910
• Citation: 58 Wash. 604,109 P. 320
• Court: Washington Supreme Court
• Parties: SULTAN RY. & TIMBER CO. v. GREAT NORTHERN RY. CO. [£]

109 P. 320

58 Wash. 604

SULTAN RY. & TIMBER CO. v. GREAT NORTHERN RY. CO. ^[£]

Supreme Court of Washington

June 2, 1910

Appeal from Superior Court, King County; J. T. Ronald, Judge.

Action by the Sultan Railway & Timber Company against the Great Northern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

F. V Brown and Frederic G. Dorety, for appellant.

Benjamin S. Grosscup and William C. Morrow, for respondent.

FULLERTON J.

The respondent brought this action against the appellant to recover damages for a breach of contract. The action was tried in the court below by the judge sitting without a jury and resulted in a recovery by the respondent. This appeal was taken therefrom.

The facts material to an understanding of the controversy are in substance these: The appellant is a common carrier of both intrastate and interstate commerce. The respondent is engaged in the business of logging. For some time prior to the month of April, 1903, the respondent had logged in the vicinity of what is now Sultan Junction. At that date it owned a considerable body of timber in that vicinity, the logs from which it was marketing by bringing them down on skid roads to the Skykomish river, from whence they were rafted to the city of Everett where the principal market was found. The motive power used to drag the logs along the skid road was furnished by stationary donkey engines. After the logs were brought to the skid road from the place where they were cut the nearest donkey engine would send out its cable and drag them along until they could be reached by the cable of the next engine, which, in turn, would drag them to the next one, and, so on, until they reached the dumping grounds on the bank of the river. As the timber was logged off, the line of haul lengthened, requiring the repeated installation of additional donkey engines, as the distance that could be covered by one ranged from but one-half to three-quarters of a mile. In April, 1903, the respondent found it necessary to change its method of hauling, and conceived the idea of laying rails on its skid road and using a locomotive engine to haul its logs. Its skid road crossed the appellant's railway track at grade, and, to make the required change, it was found to be necessary to cut the track at the place of crossing and put in the customary frogs and other protective devices usually found at railroad crossings. The respondent thereupon applied to the appellant for the privilege of putting in a crossing at grade, when it was informed by the railroad company that a grade crossing was inadvisable, and that the respondent must find a crossing either above or below grade. An over or under crossing was found not to be feasible, and various plans were suggested by the respondent to overcome the appellant's objection to a grade crossing, none of which proving acceptable, the respondent threatened to avail itself of the courts with the view of forcing a crossing. About this time the appellant's traffic manager approached the officer of the appellant, and inquired what rate of carriage they would deem sufficiently attractive to induce them to discontinue hauling logs across the appellant's tracks, and to market them by way of the appellant's road instead. Negotiations were thereupon taken up along this line, which was participated in by a number of the managing and traffic officials of the appellant's road, during the course of which the respondent informed them fully of its then timber holdings, of the timber on which it held contracts of purchase, and of other timber tributary to that point of shipment which they expected to procure, as well as the additional cost and expense it would be put to in order to change its system of logging to make it fit the changed conditions, among which was the fact that it would have to lessen the grades and lengthen the curves on its existing road, and place thereon heavier rils and construct more substantial bridges than would be necessary were it to pursue the method of logging it originally had in view. Particular inquiry seems to have been made by the railway officials as to the volume of traffic the railway might expect from that source, and was told that it would take from 15 to 20 years to finish logging the timber tributary to the railway at that point. The railway company finally proposed to haul the respondent's logs from Sultan Junction to Everett at a rate of $1 per thousand feet board measure, with an estimated equivalent weight basis of 25 cents per ton, until a permanent weight basis could be arrived at by weighing the logs for the first few months of hauling. This proposition was accepted by the respondent, whereupon the appellant, through its assistant traffic manager, wrote the respondent's president the following letter: 'Seattle, Wash., April 26, 1904. Mr. U. K. Loose, President, Sultan Railway & Timber Co., Snohomish, Washington--Dear Sir: Referring to the matter of hauling your timer from Sultan Junction to Snohomish, Everett, Union Slough and Marysville. The understanding reached between you, Mr. Ward and myself at the discussion we had in Mr. Ward's car on Friday, April 22nd, is, until a permanent weight basis can be arrived at by weighing the cars for the next few months, that the logs shall be handled as follows: A charge of 25 cents per ton with a minimum of 50,000 Ibs. per car, will be made, you to furnish certified copies of Official Scaler's report of logs hauled at the end of each month; and an adjustment of 'over or under' charges will be made so that the charge to you for hauling will not exceed $1.00 per thousand feet official scale with a minimum of 7500 feet per car average for the month. A special switching charge of $3.75 per hour will be made where we are required to make more than one setting of cars; except that we will give one hour's time on the switch engine in spotting cars at your unloading works. You are to take empties and deliver loads at convenient transfer tracks at Sultan Junction, and will keep the tracks, necessary for our engine to use, in such repair as to enable our trains to run over them with perfect safety. We will furnish banks and attach same to cars assigned to your exclusive service; but in the event that cars are taken out of service on account of suspension of operations they are to be re-bunked by you; or, you will accept this company's bill for same. Cars used in your service will be subject to the usual rules of the Car Service Association. You are to assume ordinary responsibilities assumed by railways interchanging cars as covered by rules of the American Railway Association. Your company to load and unload the logs and assume responsibilities for damage to cars in doing so. The instructions to cover our understanding of the terms under which your logs are to be hauled by contract were received from Mr. J. W. Blabon, our Fourth Vice President; and although Mr. Ward said that he did not care about a contract, it may be that Mr. Blabon will still wish to have one executed; in the meantime, however, I will issue instructions to our agents to handle the business as outlined above. Yours truly, Jno. C. Eden, Assistant General Traffic Manager.' The parties continued under the arrangement outlined in the letter until March 1, 1906, when a weight basis for charges at the rate of 24 cents per ton was agreed upon in place of the charge based on board measure. Shipments were continued on the weight basis until June 29, 1907, when the appellant notified the respondent that the rate arranged for in the foregoing agreement would be canceled on August 31, 1907, and that thereafter the respondent would be required to pay for shipment of its logs between the points named at a rate of 60 cents per ton, or $2.50 per thousand feet board measure. Subsequent to the time the rate was agreed upon, and prior to the time it received notice of the cancellation of the contract, the respondent expended in changes and extensions of its logging road the sum of $60,000. After the cancellation of the agreed rate, the railroad company published and posted and filed with the State Railroad Commission a rate or tariff sheet, showing a rate for logs between Sultan Junction and Everett of $2.50 per thousand feet, board measure, or its equivalent on a weight basis of 60 cents per ton. There is, however, no evidence in the record further than the fact of the adoption of the published rate tending to show what is a just and reasonable rate for the transportation of logs between the points named. The respondent in its evidence did not touch on the question, and the railroad company offered no evidence on any of the matters in dispute, but accepted the evidence of the respondent's witnesses as true. After the adoption of the published rate, the respondent tendered to the appellant for shipment certain logs, cut, however, from timber purchased by the appellant subsequent to the time the contract was entered into, at the contract rate, tendering it at the same time the freight charges thereon at the rate of 24 cents per ton. The shipment was refused by the railway company at any less rate than the published rate. The respondent thereupon began this action, with the result as before stated.

The appellant's first contention, stated in the language of its learned counsel, is this: 'The parties to the transaction in question here never intended to assume binding obligations or do more than adopt a mutually satisfactory working arrangement which the self interest of both parties would enforce. But, even had they desired to assume contractual obligations, they would have failed in this instance, because there was no mutuality, since there was no agreement by the logging company to ship any particular...