Union Pac. R. Co. v. American Smelting & Refining Co.
| Decision Date | 19 December 1912 |
| Docket Number | 3,769. |
| Citation | 202 F. 720 |
| Parties | UNION PAC. R. CO. v. AMERICAN SMELTING & REFINING CO. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Syllabus by the Court.
An implied contract by the consignee to pay the freight charges on goods shipped under a bill of lading containing the stipulation, 'the consignee or consignees paying freight,' or any similar provision, arises from the acceptance by the consignee of the delivery of the goods under the bill, because the consignee knows that the carrier looks to him for the charges and by delivery waives his lien therefor in the faith that the consignee will pay them.
For the same reason an implied contract by the consignee to pay the freight charges, in the absence of a bill of lading, arises where the consignee knows that the carrier looks to him for their payment and waives his lien therefor and delivers the goods in the faith that the consignee will pay them.
Interstate shipments of ore consigned to the defendant were made. The legal charges for the transportation of this ore and the reasonable value of the transportation were $7,549.70. The consignee received the ore, paid $4,610.86 of the charges and refused to pay the remainder thereof. Held, these facts raised an implied contract by the consignee to pay the unpaid balance of the legal charges.
George H. Smith, of Salt Lake City, Utah (P. L. Williams, of Salt Lake City, Utah, N. H. Loomis, of Omaha, Neb., and Frank K Nebeker, of Salt Lake City, Utah, on the brief), for plaintiff in error.
Franklin S. Richards, of Salt Lake City, Utah (Edward S. Ferry and Daniel Hamer, both of Salt Lake City, Utah, on the brief) for defendant in error.
Before SANBORN and CARLAND, Circuit Judges, and WILLIAM H. MUNGER, District Judge.
This writ of error challenges a judgment which sustained a demurrer to the complaint of the Union Pacific Railway Company, on the ground that it failed to state facts sufficient to constitute a cause of action, and adjudged that the complainant should take nothing and pay the costs of the suit.
The complaint contained the proper jurisdictional averments, and also alleged these facts: In Jury and August, 1907, the plaintiff transported over its railroad and over its connecting lines from Goldfield, Nev., by a route designated to the initial carrier by the shipper, to Denver, Colo., seven car loads of ore, and delivered them at Denver to the American Smelting & Refining Company, the defendant, a corporation, to which they were consigned. The legal charges for this transportation and the reasonable value thereof were $7,549.70. The defendant paid $4,610.86 of these charges when it received the ore. The plaintiff has demanded the payment of the unpaid balance thereof, but the defendant fails and refuses to pay any part of them.
The main argument in support of the judgment below is that the consignor or shipper is primarily liable under a contract of consignment for the freight charges on the goods, and the consignee is not; that a new contract, either express or implied, between the carrier and the consignee is indispensable to the creation of a liability of the latter for such charges; and that the acceptance of the goods by the consignee raises no implication of a contract by the latter to pay the charges for the transportation thereof. But if this contention be sound, it is not conclusive of the question presented in this case, because the averments of the complaint, read, as they must be, in the light of the acts of Congress and the law, present much more than a mere acceptance by the consignee of the goods transported. By virtue of the law of the land, the railroad company had a lien upon this ore until it was delivered to the consignee for the charges for its transportation, and when the railroad company delivered it to the defendant it lost that lien. The amount of the charges for the transportation was fixed by schedules of rates legally published pursuant to the act to regulate commerce and the amendments thereof (Act June 29, 1906, c. 3591, 34 Stat. 586, Sec. 2); and it was unlawful for the plaintiff to give, and for the consignee or any other person to receive, any rebate or concession from this amount, whereby this ore should be transported at a less rate than that named in the schedules of rates filed and published under the acts of Congress. Act Feb. 19, 1903, 32 Stat.c. 708, p. 847 (U.S. Comp. St. Supp. 1911, p. 1309). These things the consignee knew; for it was charged with knowledge of the law.
Thus it will be seen that when the complaint and the law, in accordance with which it must be construed, are read together, its averments show that this ore was consigned to the defendant; that the legal charges for its transportation due to the plaintiff were $7,549.70; that the defendant knew that there were legally published schedules of rates of transportation which fixed the amount of these charges; that the giving by the plaintiff, or the receipt by it, or by any other person, of any rebate or concession from that amount was illegal; that the railroad company had a lien upon this ore for this amount, which it lost by delivering it to the defendant; and that with this knowledge the defendant accepted the ore and paid $4,610.86 of the legal transportation charges and refused to pay the balance. These facts leave no rational avenue of escape from the implication that the defendant, in consideration of the waiver by the plaintiff of its lien for its charges and its delivery of the goods, agreed to pay the lawful charges for their transportation.
These facts certainly established an implied contract by the defendant to pay the $4,610.86, which it did pay. But the legal charges were $7,549.70. The legal presumption is that the plaintiff intended to charge, and the defendant intended to pay, a legal, and not an illegal, amount for this transportation; and the conclusion is that the facts pleaded evidence an implied contract by the defendant to pay the legal charges for the transportation, and that the complaint states a good cause of action. Hatch v. Tucker, 12 R.I. 501, 503, 34 Am.Rep. 707; 3 Kent's Comm. (14th Ed.) * page 222, * page 228, note (e); Hutchinson on Carriers (3d Ed.) Sec. 807; 4 Elliott on Railroads, Sec. 1559; Philadelphia & Reading R.R. co. v. Barnard & Sons, 3 Ben.Rep. 39, 41, Fed.Cas.No. 11,086; North German Lloyd v. Heule (D.C.) 44 F. 100, 101, 10 L.R.A. 814; Davison v. City Bank, 57 N.Y. 81,...
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