TM Partridge Lumber Co. v. Michigan Cent. R. Co., 7656.

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: VAN VALKENBURGH, Circuit , and REEVES and OTIS
• Citation: 26 F.2d 615
• Parties: T. M. PARTRIDGE LUMBER CO. v. MICHIGAN CENT. R. CO.
• Docket Number: No. 7656.,7656.
• Decision Date: 16 May 1928

26 F.2d 615 (1928)

T. M. PARTRIDGE LUMBER CO.
v.
MICHIGAN CENT. R. CO.

No. 7656.

Circuit Court of Appeals, Eighth Circuit.

May 16, 1928.

26 F.2d 616

Stanley B. Houck, of Minneapolis, Minn., for plaintiff in error.

Allan Briggs and Briggs, Weyl & Briggs, all of St. Paul, Minn., for defendant in error.

Before VAN VALKENBURGH, Circuit Judge, and REEVES and OTIS, District Judges.

OTIS, District Judge.

On April 18, 1922, the plaintiff in error, defendant below and hereinafter referred to as the defendant, shipped a car of cedar poles from St. Boniface, Manitoba, to itself at Pinconning, Mich. Later the shipment was reconsigned, and on or about May 16, 1922, delivered to the Detroit Edison Company at Detroit. Defendant should have paid defendant in error, plaintiff below and hereinafter referred to as plaintiff, $345.63 as freight charges. It did pay $386.50, or $40.87 more than was justly due. It claimed a refund, and was erroneously refunded $60.21 more than the amount to which it was entitled. On September 8, 1924, to partially reimburse plaintiff for this overpayment, defendant paid plaintiff $4.46, leaving still unpaid of the overpayment the amount of $55.75. Plaintiff brought this suit February 19, 1926, and had judgment below for that amount.

It is one of the contentions of defendant that, if this is an action to recover freight charges, then the statute of limitations had run before the action was begun. The statute reads:

"All actions at law by carriers subject to this act for recovery of their charges, or any part thereof, shall be begun within three years from the time the cause of action accrues, and not after." 41 Stat. 492; Comp. Stat. § 8584 (49 USCA § 16 (3), (a).

But that this is not an action for the recovery of charges is too clear for argument, and the trial court properly so held. Therefore this statute has no application. The trial court held, we think properly, that the action is one on implied contract to refund money paid through error. If so, however, it is not a suit or proceeding arising under any law regulating commerce, or within any other class of suits of which the federal District Courts have original jurisdiction. For that reason it should have been dismissed by the trial court. Section 37, Judicial Code (28 USCA § 80).

Reversed, with directions to dismiss at plaintiff's costs.

VAN VALKENBURGH, Circuit Judge (concurring).

I concur in the disposition of the case directed in the foregoing opinion. If the...