W. H. Ferrell & Co. v. Great N. Ry. Co.

• Decision Date: 08 November 1912
• Citation: 138 N.W. 284,119 Minn. 302
• Parties: W. H. FERRELL & CO. v. GREAT NORTHERN RY. CO.
• Court: Minnesota Supreme Court

119 Minn. 302

138 N.W. 284

W. H. FERRELL & CO.

v.GREAT NORTHERN RY. CO.

Supreme Court of Minnesota.

Nov. 8, 1912.

Appeal from District Court, Mille Lacs County; C. A. Nye, Judge.

Action by W. H. Ferrell & Co. against the Great Northern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

See, also, 114 Minn. 534, 131 N. W. 1135.

Syllabus by the Court

A contract by a common carrier to supply to a particular interstate shipper a specified number of cars on certain dates, to be used in such shipment, is not a violation of the act of Congress regulating interstate commerce (Act Feb. 4, 1887, c. 104, 24 Stat. 380 [U. S. Comp. St. 1901, p. 3155]), unless it appear that the contract, if performed, will in fact extend to that shipper an undue or unreasonable preference over other shippers.

Evidence held sufficient to support the verdict; and, though perhaps indefinite in some respects, defendant is not, under the rule of Cruikshank v. Insurance Co., 75 Minn. 266, 77 N. W. 958, entitled to judgment notwithstanding the verdict. James E. Markham, of St. Paul (M. L. Countryman, of St. Paul, of counsel), for appellant.

Stiles & Devaney, of Minneapolis, and E. L. McMillan, of Princeton, for respondent.

BROWN, J.

Action to recover damages for the breach of an alleged contract to furnish refrigerator cars for the shipment of certain property, in which plaintiff had a verdict, and defendant appealed from the judgment rendered thereon after a denial of its motion for judgment notwithstanding the verdict. The case was before us on a former appeal, where it was held that the complaint stated a cause of action for breach of contract. 114 Minn. 534,131 N. W. 1135. We follow that decision.

It is unnecessary to set out the allegations of the complaint at length, or the proceedings preliminary to the commencement of the trial. While the complaint contains several causes of action, predicated upon distinct grounds, the trial court required plaintiff to elect upon which ground it would rely for recovery, and plaintiff elected to rely upon the breach of an express contract to furnish the cars. The trial so proceeded, and was confined to a definite number of the several causes of action stated in the complaint; all others being dismissed or abandoned. The facts, so far as necessary to an understanding of the questions presented, are as follows:

Plaintiff is a Minnesota corporation, an extensive dealer in and shipper of Minnesota potatoes, and owns warehouses for storage purposes at several stations along defendant's road between St. Paul and Duluth. In January, 1910, plaintiff had in storage in its said warehouses a large quantity of potatoes for shipment to the Southern and Southwestern markets, requiring for their transportation in the neighborhood of 200 refrigerator cars. Plaintiff filed with local agents of defendant orders for a specified number of cars, designating the number and the station at which they were required. One of these orders was so presented on January 13th, and called for 100 cars, on the dates and at the stations therein named. Some of the cars so ordered were furnished by defendant, namely, 61. On January 28th plaintiff presented another order for additional cars, under which no cars were furnished. There seems to have been some delay in the matter, and, being anxious to get their potatoes to the Southern market, plaintiff's general manager personally visited the traffic manager of the road on the 31st of January, and it is claimed by plaintiff that a contract was then entered into by which defendant undertook and agreed to furnish at the times and stations designated by plaintiff the necessary number of cars required for the shipment of the potatoes plaintiff then had on hand. The cars were not furnished, and the potatoes could not be shipped out, and plaintiff claims that, in consequence of defendant's failure, plaintiff suffered a loss by reason of a drop in the market price of potatoes, for which it seeks to recover in this action. Defendant denied making the contract, and whether it was made presented one of the principal issues on the trial below. Plaintiff's right to recover was thus placed entirely upon the alleged contract, and not in any view upon a claim of the violation of defendant's common-law or statutory duty to furnish the cars.

[2] 1. It is contended by defendant that the evidence wholly fails to sustain the claim of an express contract, and that the court below erred in denying its motion for a directed verdict, and also in denying its motion for judgment notwithstanding the verdict. Our examination of the record results in the conclusion that the evidence sufficiently supports the verdict, within the rule guiding us in such cases. It is not disputed that plaintiff's manager, Ferrell, called upon defendant's general traffic manager, Broughton, on or about January 31st, in reference to providing cars under the orders previously made by plaintiff, and no dispute but that the traffic manager referred plaintiff's representative to Mr. Beidleman, an agent of defendant having in charge its refrigerator car service. Nor is it disputed that those persons them had some negotiations and discussion in reference to the subject. Plaintiff claims, and Ferrell so testified, that the former orders for cars were then before the parties, and that Beidleman expressly agreed to provide the cars so ordered. Beidleman denied the express agreement, and testified that he agreed to furnish the cars just as soon as they could be had, that there was a car shortage at the time, and that the company was providing and sending to the use of plaintiff as rapidly as possible all available cars. The testimony offered by plaintiff was sufficient, if believed by the jury, to establish the alleged contract. If it may be said that the question is doubtful on the...