W. J. Lake & Co. v. Mont. Horse Prods. Co.

• Citation: 109 Mont. 434
• Decision Date: 04 January 1940
• Docket Number: No. 7866.,7866.
• Parties: W. J. LAKE & CO. v. MONTANA HORSE PRODUCTS CO.
• Court: United States State Supreme Court of Montana

109 Mont. 434

W. J. LAKE & CO.

v.MONTANA HORSE PRODUCTS CO.

No. 7866.

Supreme Court of Montana.

Dec. 7, 1939.

As Amended on Denial of Rehearing Jan. 4, 1940.

Appeal from District Court, Second Judicial District, Silver Bow County; T. E. Downey, Judge.

Action by W. J. Lake & Co. against the Montana Horse Products Company, a corporation, to recover one-half of certain excessive freight charges recovered by defendant, wherein defendant filed a counterclaim. From an adverse judgment, defendant appeals.

Affirmed.

P. E. Geagan, of Butte, for appellant.

John K. Claxton, of Butte, for respondent.

ANGSTMAN, Justice.

This is an appeal by defendant from a judgment entered on a verdict in favor of plaintiff. The action was originally brought against the Hansen Packing Company as well as against the Montana Horse Products Company, but at the trial plaintiffvoluntarily dismissed as to the Hansen Packing Company. Hereafter, in referring to defendant, we shall be understood as meaning the Montana Horse Products Company.

The complaint sets forth that plaintiff purchased from defendant certain products to be shipped from Butte to various points in the state of Washington during the year 1930; that the defendant agreed at the time of selling the products that the freight rates to the points of delivery were excessive, and that it would prosecute claims for refunds of the excessive freight charges and, upon recovery thereof, would allow plaintiff one-half; that plaintiff purchased the products on the strength of the agreement and paid the excessive freight charges; that defendant successfully prosecuted a claim for refund against the rail carriers in excess of $2,400, the exact amount being to plaintiff unknown, and has failed to account to plaintiff for one-half or any part thereof.

The answer of defendant admits the essential allegations of the complaint so far as 360 tons or twelve cars of products were concerned, save and except it alleges that plaintiff was only to have one-half of the excess freight charges after deducting the expenses of recovering them, and that as applied to the 360 tons, the excess freight charge recovered was $900, the cost of recovering it $225, leaving a balance of $675, and that plaintiff was given credit for one-half thereof. It also sets forth an alleged counterclaim, but since the jury found against defendant thereon on conflicting evidence, we shall not allude to it further.

The first question presented is whether the court erred in admitting, over defendant's objection, copies of letters written by plaintiff and which it claimed were mailed to defendant. It is contended that no foundation was laid justifying their admission. Plaintiff, to prove its case, offered in evidence an order of June 12th, 1930, for twelve cars of meat scrap. Plaintiff's witness, L. E. Branchflower, testified that he had a telephone conversation with Walter Hansen, who, the record shows, transacted all the business for the Montana Horse Products Company, relative to the twelve cars of meat scrap, at which time they agreed to “handle twelve cars of this horse meat scrap at the price indicated in the confirmation for shipment in accordance with the terms of confirmation on freight allowed Seattle basis, and I think $59 per ton is right. *** That we would receive in return in addition one-half of any freight rebates or adjustments that might be secured which would be $1.25 a ton to us.”

According to this witness, after this conversation took place plaintiff made out a formal confirmation sheet or order in duplicate, containing details regarding the shipping instructions. It contained a statement, “Buyer to receive one-half of freight rate change, if any effective.” This was mailed to defendant in Butte on June 12, 1930. On June 16th plaintiff received a letter from defendant signed by J. T. Sullivan and dated June 13, 1930, notifying plaintiff that one car had been shipped and that defendant company was drawing on plaintiff “for the full amount of the invoice, $1,770.00.” Similar letters were received on June 14th, 16th, 19th, 23rd, 28th, 30th, and July 7th, 12th, 18th and 24th, regarding the other eleven cars.

As above pointed out, as to these cars there is no controversy here, except that defendant contends it had a right to deduct from the refund the cost of procuring it, whereas plaintiff contends that it was entitled to one-half thereof without deduction of cost of effecting its collection. The main controversy hinges upon proof of twenty additional cars, the evidence relating to which is as follows:

Branchflower, testifying for plaintiff, said that on June 25th, 1930, he prepared a confirmation or order for twenty cars of meat scrap which was enclosed with a letter to defendant. The letter read:

“June 25th, 1930

Montana Horse Products Company,

Butte, Montana:

Attn. Mr Walter Hansen.

Gentlemen:

After making shipment of the cars of Vitamont Meatscraps previously ordered out, please make the following shipments, drawing on us at Seattle as usual.

30 tons-Spokane, Washington-Great Northern

30 tons-Yakima, Washington-Northern Pacific

Mr. Branchflower handed the enclosed contract to the writer, covering 20 cars (600 tons) of Vitamont Meatscraps purchased from you for July-August/September delivery as per his 'phone conversation with you, and advises that we are to share fifty per cent in any freight refunds that may be made on these cars as well as the twelve cars purchased on June 12th, due to the present rate being reduced back to the old rate of 25 1/2c per 100 1bs. We are working with you in an effort to secure this lower rate.

Would you please advise the writer if it is your intention to have the 25 1/2c rate retroactive or if you intend filing reparation claims on each car after the rate is published. Would like this information so that we will know how to work on this end with the carriers.

Yours very truly,

W. J. Lake & Co., Inc.

R. V. Cornell, Secretary.”

Demand was made upon defendant to furnish the original letter of June 25th, but defendant asserted that it did not have the letter. A copy of the letter was introduced in evidence, and defendant assigns error in admitting it, contending, as above stated, that there was not a proper foundation for its admission. Several specifications of error raise the same point as to other letters written by plaintiff to defendant in 1932, which requested information from defendant as to the progress being made to secure the refund in freight charges.

Defendant's contention is that the proof was not sufficient to show that the letters were duly directed or mailed so as to give rise to the presumption that they were received in the regular course of the mail, within the meaning of subdivision 24, section 10606, Revised Codes, as construed in Meagher v. Harrington, 78 Mont. 457, 254 P. 432, and Renland v. First National Bank, 90 Mont. 424, 4 P.2d 488.

There was evidence showing that the letter above quoted, and order for twenty cars of meat scrap, were enclosed together in an envelope which was addressed to the Montana Horse Products Company, at Butte, Montana. The postage was paid and the envelope had stamped on it the return address. The witness Branchflower at first testified that he did not see the envelope deposited in the mails; later he said that he personally put the letter in the United States mail box outside the building at Seattle. The proof was ample to show that the letter was properly mailed so as to raise the presumption that it was received in the regular course of the mails. Hence, it was properly admitted in evidence. Additionally, it was shown that shipping instructions contained in the letter were carried out, and also it was conceded by defendant that it received the written order; hence, if the jury believed that the written order accompanied the letter, then the letter must also have been received.

As to the other letters, defendant contends that there was no evidence on the vital point as to whether they were placed in envelopes addressed to the defendant in Butte. On the face of the letters they were directed to “Montana Horse Products Company, Butte, Montana, Attention Mr. R. H. Paull.” We need not determine whether the letters, other than that of June 25, 1930, were properly received in evidence. Were we to hold that they were inadmissible, it would not follow that a new trial must be had. It appears to us that defendant's rights were not prejudicially affected by such letters. As above noted, the contract relied upon by plaintiff was amply established by the letter of June 25th, 1930, which the evidence shows accompanied the order admittedly received by defendant. The letters in question tended to corroborate the other evidence, so far as plaintiff's right to freight refunds on the shipments under the order of June 25, 1930, was concerned. Had the defendant submitted some substantial evidence to refute the existence of such a contract, then the corroborating evidence, if inadmissible, might be said to have been prejudicial, for it might then have influenced the jury to decide for plaintiff, whereas the jurors might otherwise have been warranted in finding for defendant. But as we view the evidence, there was no substantial evidence submitted by defendant to refute the existence of the contract relied upon by plaintiff, and hence on that issue there was room for but one verdict.

The evidence submitted by defendant shows: “Mr. Hansen done the selling of this meat meal to Lake & Company and I think practically all the business done with Lake & Company on behalf of the Montana Horse Products was transacted by him.” Mr. Hansen was not called as a witness, and neither was Mr. Paull to whose attention the letters in question were all addressed. The only witness called by defendant was Mr. Sullivan, an accountant for defendant. He admitted that the order of June 25, 1930, had been received and executed by defendant. He was asked what...