United States v. Benjamin Motor Express, Civ. A. No. 50-461.

• Decision Date: 03 January 1957
• Docket Number: Civ. A. No. 50-461.
• Citation: 147 F. Supp. 15
• Parties: UNITED STATES of America v. BENJAMIN MOTOR EXPRESS, Inc.
• Court: U.S. District Court — District of Massachusetts

147 F. Supp. 15

UNITED STATES of America v. BENJAMIN MOTOR EXPRESS, Inc.

Civ. A. No. 50-461.

United States District Court D. Massachusetts.

January 3, 1957.

Anthony Julian, U. S. Atty., Andrew Caffrey, Asst. U. S. Atty., Boston, Mass., for plaintiff.

Max Singer, S. Roy Remar, Boston, Mass., for defendant.

FORD, District Judge.

This is an action by the United States to recover alleged overcharges made by the defendant on transportation of property of the United States during the years 1943 through 1945. Payment was made upon presentation of the bills therefor by the carrier. Upon subsequent audit of the bills the United States claims that an overpayment to the carrier has been made.

Defendant is a common carrier by motor vehicle. On June 17, 1943 it submitted to the Navy Department a letter signed by one Eli Hurwitz in which it quoted rates for the transportation of ammunition, explosives and other ordnance. By its terms this was to become a binding agreement when accepted by the United States by making a shipment under its terms or otherwise. The shipments involved in this litigation were thereafter made under the terms of this offer. Defendant's only contention against the validity of the contract is its argument that Hurwitz was not an agent authorized to bind the defendant.

On the face of the rate quotation Hurwitz was described as the "authorized agent" and "office manager" of defendant. He was in fact the office manager, and during the period 1940-1948 was also a director and the clerk of defendant corporation. There was evidence that he actually did handle the making of rate quotations for defendant, and that it was a part of his duties to do so. It must be found that he had not only apparent, but also actual, authority to bind the corporation, and that the rate quotation submitted by him became, upon acceptance by the United States, a valid and binding contract between the parties.

The transportation services involved consisted in the carriage of ammunition and other related material from the United States Naval Ammunition Depot at Hingham, Massachusetts, to the United States Naval Reservation at Price's Neck, Rhode Island, on various dates during 1944 and 1945.

The general procedure followed was that on request of personnel at the Hingham Depot, defendant's trucks and drivers reported there. Drivers had to obtain identification cards and then have the trucks examined and approved by naval personnel. The average time for this operation was one hour. They then drove to various dumps within the depot where the trucks were loaded. About 50% of the time they would have to drive to the portion of the depot located in Cohasset, about five miles away, to pick up part of their load there and then return to Hingham. At times drivers had to leave their loaded trucks at the depot over night, returning there on the next morning to take them out. The evidence on this point, however, went only to the general procedure followed. There was no evidence as to exactly what was done as to any particular shipment, and the shipments involved in this action were only part of a larger number of shipments carried by defendant for plaintiff during these years.

In each of the shipments involved here the point of origin was described in the bill of lading as Hingham, Massachusetts (except for one bill in which it was described as Cohasset, Massachusetts), and the destination was described as Price's Neck, Rhode Island. Price's Neck is located within the corporate limits of the city of Newport, Rhode Island. It is so shown on the official map prepared by the city engineer and on maps issued by the United States Geological Survey, and has been for many years assessed for tax purposes by the city of Newport. The naval installation on Price's Neck was located about five miles by motor vehicle from the railroad freight station in Newport.

The controversy here concerns the proper rates to be charged for these shipments. The governing provision of the contract, as contained in defendant's rate quotation of November 17, 1943, reads as follows:

"Item No. 2. Rates to be Applied.

"Rates as found in tariffs: New England Motor Rate Bureau Inc. & Middle Atlantic States Motor Carrier Conference Inc., but not to exceed the applicable railroad rates for the same quantity between the same points."

It is the government's position that the charge that could be made for these shipments is limited by the applicable railroad rate of 41 cents per hundred pounds for this class of commodity from Hingham to Newport. Defendant contends that the shipments were properly billed at the rate of $1.49 per hundred pounds, the applicable rate in the tariff of New England Motor Rate Bureau Inc.

Defendant's argument seems to be the following. The government could not have obtained from a railroad exactly the same service rendered by defendant. At Hingham the railroad would have furnished cars on a siding just outside the ammunition depot. It would have carried the cars only as far as the Newport railroad station which is five miles from the...