W. L. Becker & Co v. Norfolk & W. Ry. Co

• Decision Date: 17 September 1919
• Citation: 100 S.E. 478
• Court: Virginia Supreme Court
• Parties: W. L. BECKER & CO. v. NORFOLK & W. RY. CO.

100 S.E. 478

W. L. BECKER & CO.

v.NORFOLK & W. RY. CO.

Supreme Court of Appeals of Virginia.

Sept. 17, 1919.

Error to Corporation Court of Roanoke.

Action by the Norfolk & Western Railway Company against W. L. Becker & Co. To review judgment for plaintiff, defendant brings error. Reversed, and judgment entered for defendant.

Jackson & Henson, of Roanoke, for plaintiff in error.

Roy B. Smith, of Roanoke, for defendant in error.

PRENTIS, J. These are the facts out of which this controversy arises: W. L. Becker, trading as W. L. Becker & Co., bought of the Griffin-Skelley Company, of Fresno, Cal., a carload of dried fruit and raisins, which on October 27, 1908, was shipped by the vendor to the vendee at Roanoke. The bill of lading shows that the car was "consigned to the order of Griffin-Skelley Company, notify W. L. Becker & Co., Roanoke, Va." The vendor assigned this bill of lading to the vendee, and the company delivered the car on the 17th day of November, 1908. It was promptly unloaded, the empty car was sent out by the company on November 22d, and on November 24th the vendee paid the amount of the freight demanded by the company, shown by the freight bill, $406.05. The proper rate was $1 per 100 pounds. By some unexplained error in the calculation of the gross weight, the freight bill only charged as for 40, 605 pounds, whereas the true weight of the shipment was 69, 465 pounds. Although the company should have collected $694.65, it collected only $400.05, which left a balance of $288.60 due. The error was apparently not discovered for some time, though the detailed weights of the packages which disclose the error was then known and this action by the company against the vendee was instituted November 23, 1911. The defendant pleaded the statute of limitations, claiming that the action was barred within three years from the date on which the right of action accrued, and, the case being submitted to the judge of the trial court, there was a judgment in favor of the company, of which the defendant is here complaining. The only question submitted for determination is whether or not the action is barred.

It is necessary, then, to determine when the cause of action arose, and the limitation which is applicable thereto.

The freight bill was paid on November 24, 1908, and it is claimed for the company that this is the date upon which the cause of action accrued. The learned judge of the trial court appears to have taken this view, and cites Grove v. Lemley, 114 Va. 202, 76 S. E. 305, as authority for the proposition that "in a court of law the limitation runs from the date of settlement and payment." That case, however, was an action to recover an overpayment, and there can be no doubt that, when one erroneously pays money to another which he does not owe, his cause of action for the recovery of such overpayment arises on the date when payment is made. That rule, however, has no application whatever to such a case as this. This payment was made in settlement of a debt for which the company already had a cause of action which had arisen previous to such payment. By no course of reasoning could the payment of less than the amount originally due be construed to change the date when the original cause of action for the whole amount arose. Under the Virginia statute of limitations, the partial payment of debts already due does not affect the running of the statute or operate to create a new cause of action.

We have no doubt that this cause of action against the vendee of the goods arose on the date when the company delivered the car to him—that is, on November 17, 1908. The company had a lien upon the goods for the sum due it for freight, hence could have refused to deliver the car until the freight was paid, and under the circumstances of this case the defendant must be presumed to have promised to pay the freight when he accepted and unloaded the car. The question raised is whether this cause of action is based upon an implied or express parol promise, or whether, as claimed by the company, its cause of action is based upon an express promise in writing contained in the bill of lading, which was signed by the Griffin-Skelley Company in California when the shipment was made. It is contended that, in signing this bill of lading, the vendors acted as agents for the vendee, and that, therefore, the limitation is five years, as upon such express promise in writing.

This contention is based upon these provisions in the bill of lading:

(a) "It is further stipulated that the service to be performed hereunder shall be subject to the conditions, whether printed or written, herein contained, and said conditions are hereby agreed to by the shipper and by him accepted for himself and his assigns as just and reasonable."

(b) "Charges. —The owner or consignee to pay freight charges as per specified rates upon the goods as they arrive."

Such a clause as to payment of freight charges by the owner or consignee is an ancient one in bills of lading. It was construed by Lord Ellenborough, C. J., in the case of Shepard v. De Bernales, 13 East, 5G5. He says this:

"The first is the chief and most material question; and it depends upon the effect of this clause in the bill of lading, 'he or they paying freight for the said goods.' If this clause were introduced with a view to the defendant's security, and made it incumbent upon the plaintiff, at his peril, to look to the consignee under the bill of lading for payment of the freight, the plaintiff had no right to deliver to ...