W. Va. Transp. Co. v. Swebtzer.

• Decision Date: 21 March 1885
• Citation: 25 W.Va. 434
• Parties: W. Va. Transportation Co. v. Swebtzer.
• Court: West Virginia Supreme Court

25 W.Va. 434

W. Va. Transportation Co.

v.Swebtzer.

Supreme Court of Appeals of West Virginia.

Submitted June 25, 1883.

Decided March 21, 1885.

1. If a person be engaged in buying oil in an oil-region and shipping it over a railroad, and there is no other outlet for this oil except over this railroad, and under these circumstances he agrees to pay to the railroad company more than its legal rates of charge for the freight of such oil and does make such payments from time to time, in order that he may get his oil transported to market in the only manner, in which he ean tranport it, though such payments are made after each shipment of oil has been made and the oil delivered, sueh person must be considered as making such payment not voluntarily but by compulsion, and he has a right in an action for money had and received for his use to recover back the exeess of freight so paid by him over the amount, which the railroad company had a legal right to charge, or to offset this excess against the railroad company's charge, if it brings an action of assumpsit against such shipper, (p.444.)

2. In such aetion to recover back such excess of payments made beyond the legal rates of charge there is no necessity for the plaintiff to prove, that he demanded the repayment of such excess by the railroad company before instituting such suit, (p. 464.)

3. The principles decided in The Laurel Fork and Sand Hill Railroad Company v. The West Virginia Transportation Company, supra, approved and acted upon. (p. 465.)

Statement by Green, Judge:

The West Virginia Transportation Company, a corporation of this State, in 1878 brought an action of assumpsit in the circuit court of Wood county against Moses Sweetzer for freight on oil, storage, cash paid by the plaintiff to the Baltimore &Ohio Railroad Company for the use of the defendant at the request of the plaintiff, for freight on that road and for services and inspection of oil for defendant. The declaration contained nothing but the proper common counts including a count for money had and received, and with it was filed a bill of particulars containing a detailed account of the claims of the plaintiff amounting in all to $178.41. The declaration was tiled at the August rules, 1878. The defendant pleaded non-assumpsit, payment and set-off, on which issues were joined. With his plea of set-oil the defendant pleaded a specification of offsets. It consisted of thirty-two items, "to cash paid freight on a specified number of barrels of oil for not exceeding four miles to Laurel Junction," the date of said items of payments of freight being severally given. The aggregate of freight so specified as paid at given dates between May 8, 1877, and May 8, 1878, was $609.31; and on each of said dates of payment there was credit given for certain specified sums as " legal rates for transportation by you of said oil on said railroad to Laurel Junction." The aggregate amount of these legal charges as specified in this bill of particulars was $217.70, leaving a balance of $392.11 due to the defendant for over-payments of freight.

The issues joined were tried by a jury, who on September 24, 1879, found a verdict for the defendant, Moses Sweetzer, on the issues joined for $240.46. A motion was made by the plaintiff for a new trial, which the court refused, and on October 18, 1879, rendered a judgment for the defendant for $240.46 with interest thereon from September 24, 1879, the date of the verdict, and for his costs.

During the progress of this case the plaintiff took four bills of exceptions. Bill of exceptions No. 1 set out all the evidence. The plaintiff proved his account to be correct by a witness. The freight charged was thirty-five cents per barrel of forty gallons each, which did not exceed in weight oneseventh part of a ton; also certain charges named were made by the plaintiff, to all of which charges the defendant agreed in writing by signing a printed memorandum, which was filled up. The plaintiff's bill of particulars was calculated from this memorandum and was correct according to the rates of charge named in the memorandum. They were calculated from the amount of oil which was placed on the railroad, and not from the amount of oil delivered, which fell short of that charged, which difference may have been caused by evaporation of the oil. The plaintiff's witness also proved that the defendant's bill of offsets was correct, and that the plaintiff's books showed, that the plaintiff had received for freight the sums therein charged by the defendant at the dates specified in the bill of offsets.

Another witness of plaintiff proved, that the plaintiff at the time specified in the defendant's bill of sets-off and since has controlled all means of public transportation from the oil-district, where the defendant was engaged in the oil-business and shipped his oil, which was transported by the plaintiff over its railroad a distance not exceeding four miles to Laurel Junction on the Baltimore & Ohio Railroad, to be thereon transported to market in Baltimore. All oil from this oildistrict would have to pass necessarily over the plaintiff's railroad. The charge made was thirty-five cents per barrel on the oil, whether it was placed directly on the railroad by the defendant or conducted to it by pipes of the plaintiff, there being no separate charge for this pipe-service. The defendant proved, that "he had been engaged in the oil-business in the said oil-district for a number of years in buying, selling and dealing in oil; that he had, at the date specified in his offsets and in the plaintiff's account, no means of getting his oils to market by public conveyance or by public carriers save over routes and means of transportation controlled by the plaintiff; that he was obliged, in order to carry on his business, to ship his oils by the plaintiff's lines and over the said Laurel Fork and Sand Hill Railroad; that he paid the amount specified in his specificatian of offsets by having the same deducted from the proceeds of oils shipped over plaintiff's railroad; that he did not know when said paymentswere made what amount was charged by the plaintiff; that the freight charges were presented in a gross sum, and included the total charges on all routes from the point of shipment on plaintiff's line to the destination of the oil in distant cities, and at points far removed from the plaintiff's lines; that such charges followed defendant's oils, and were paid without the defendant being able to find how much of such gross sum was paid to plaintiff and how much to other carriers; that defendant, time and time again, when he could learn of the charges made by plaintiff, complained and protested to M. C. C. Church, the secretary and manager of the plaintiff, about such charges, and declined to pay them, but the plaintiff, through its agent, informed him that defendant must comply with its terms or he could not get his (defendant's) oil, and that no reduction would be made, and that the defendant was required and compelled by the plaintiff to pay the rates and amounts charged by the plaintiff in order to get defendant's oil transported to market, and defendant was compelled to pay such charges and to transport his oils over the said railroad, or suffer his business to be broken up; that of the items charged in defendant's offsets, defendant did not know as to many of them that the payments therein charged had been made to plaintiff until months after the plaintiff had received the money; and in cases where the defendant had the means of knowing the amounts charged by the plaintiff, the defendant was informed by the plaintiff that he could not get his oil until he had settled the plaintiff's charges thereon, but that no oil was withheld from him by reason of the non-payment of the charges. This witness stated further that he did not know whether the plaintiff's account was correct or not. He did at one time offer to pay J. M. Brown for plaintiff the amount of said account, except $3.00 or $4.00 charged for transportation of oil not delivered; that the offer was made but not accepted; that the defendant objected to signing the paper marked 'certificate' and shown him, until he was informed that he could not get the oil therein mentioned unless he did so sign said paper; that the defendant had bought of one Kennelly the oil mentioned in said certificate, and received the certificate as evidence of the ownership of the oil."

He also proved by the plaintiff's books the correctness of his bill of offsets except the credits, which he had inserted of what he deemed the legal freight at twenty cents per ton per mile; and that nearly all the oil shipped was placed by the defendant on the railroad in barrels and did not pass through the plaintiff's tubes, though there were two or three exceptions, in which oil shipped did pass through plaintiff's tubes first. There were also offered in evidence the acts incorporating and relating to the plaintiff and the Laurel Fork and Sand Hill Railroad Company, that is, acts found in Acts of 1866 page 112, Acts of 1868 page 30, Acts of 1867 page 110, Acts of 1868 page 63, and Acts of 1869 page 8.

"And thereupon the defendant rested his case, and the above statement contained all the evidence offered and relied upon by the defendant to sustain the issue on his part and to prove his said account of offsets. Whereupon the plaintiff moved the court to exclude from the jury all the evidence adduced by the defendant so far as the same proved, or tended to prove, the said defendant's account of sets-off, upon the following grounds:

"1. Because the account thereof filed does not give the plaintiff notice of the nature of said sets-off, as required by the statutes in such cases made and provided.

"2. Because, the payments proven to have been made were voluntary payments.

"3 Because there was no evidence that the money claimed in said account of sets-off had ever been demanded by the...