WiLLCox,v,. Durham & C. R. Co.

Citation152 N.C. 316,67 S.E. 758
CourtUnited States State Supreme Court of North Carolina
Decision Date06 April 1910
PartiesWILLCOX v . DURHAM & C. R. CO.

1. Pleading (§ 214*)—Admissions by Demukrer.

A demurrer to a complaint admits its allegations to be true.

[Ed Note.—For other cases, see Pleading, Cent. Dig. §§ 525-534; Dec. Dig. § 214.*]

2. Railroads (§ 25*)—Contract by Agent— Action Thereon—Necessity of Pleading Authority.

If defendant's superintendent, who made the contract sued on, was not authorized to contract, it must be pleaded in the answer, and the complaint is not demurrable because it does not allege his authority.

[Ed. Note.—For other cases, see Railroads, Dec. Dig. § 25.*]

3. Carriers (§ 196%*) — Connecting Carriers—Action Between — Complaint for Delivering Freight— Rebates—Discrimination in Rates.

A complaint against a railroad company alleged plaintiff built a tram road and hauled over it lumber which he delivered to defendant, who shipped it, and that at a specified rate on lumber delivered by the tram road, as prescribed by contract between the parties, he became entitled to a certain sum. Held not demurrable on the ground that the contract was ultra vires, in conflict with Laws 1891, c. 320, and contrary to public policy, as it was not averred plaintiff transported any of his own lumber, and if the contract was an attempt to give plaintiff a rebate forbidden by section 4, or a discrimination in rates in his favor, it could not be fairly inferred from the complaint, and only an answer could raise the defense.

[Ed. Note.—For other cases, see Carriers, Dec. Dig. § 196 1/2.*]

Appeal from Superior Court, Moore County; W. J. Adams, Judge.

Action by W. C. Willcox against the Durham & Charlotte Railroad Company. A demurrer to the complaint was overruled, and defendant appeals. Affirmed.

H. F. Seawell and Guthrie & Guthrie, for appellant.

R. L. Burns, for appellee.

CLARK, C. J. On May 5, 1897, the defendant through its superintendent, entered into a contract with the plaiutiff containing the following provision: "For and in consideration of the benefits to be derived by the building of a tram road by the party of the second part, from a point on the line of railroad, to a point on the property of the second part, lying on the south side of Rich-lands creek, the party of the first part hereby agrees to pay to the party of the second part a sum equivalent to 1/2 cent per 100 pounds on all lumber or timber delivered by the aforementioned tram road from some point hereafter to be located, on the south side of Richlands creek." This action was begun before a justice of the peace for the sum of $200. The complaint alleges that the plaintiff built said tram road in execution of the terms of said contract and hauled over it 1, 108.356 feet of lumber which he delivered to the defendant, who shipped the same, and that at the rate of compensation prescribed by the contract the plaintiff became entitled to recover the sum of $221.67, but that he remits all above $200 and the interest on the...

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