Wooley v. Chi. & N. W. Ry. Co.

• Decision Date: 04 June 1912
• Citation: 150 Wis. 183,136 N.W. 616
• Parties: WOOLEY ET AL. v. CHICAGO & N. W. RY. CO.
• Court: Wisconsin Supreme Court

150 Wis. 183

136 N.W. 616

WOOLEY ET AL.

v.CHICAGO & N. W. RY. CO.

Supreme Court of Wisconsin.

June 4, 1912.

Appeal from Circuit Court, La Crosse County; E. C. Higbee, Judge.

Action by Thomas E. Wooley and others against the Chicago & Northwestern Railway Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

The plaintiffs are copartners in the city of La Crosse, doing business under the name of Wooley & Hanson. On or about May 30, 1906, plaintiffs and defendant entered into a contract whereby in consideration of the sum of $6,605.02 plaintiffs agreed to furnish the material and to do certain paving work on and around the station grounds of defendant in the city of Madison. The contract provided that the railway company was to furnish free transportation over its line for materials entering into the work. In September, 1906, the work was completed in accordance with the contract, and the defendant through its agent at La Crosse tendered its check for the above amount to plaintiffs, with the condition that they sign a receipt in full and also pay the sum of $434 claimed by the defendant to be due as demurrage on account of plaintiffs' failure to promptly unload cars. The amount due on the contract was paid to plaintiffs, and they in turn paid the $434 demurrage. Thereafter plaintiffs brought this action to recover the sum paid for demurrage, alleging that this amount was paid under duress owing to plaintiffs' financial condition and need of money, and with the understanding and agreement between the parties that the payment was made under protest and with a view to readjustment and refund if the charges were found to be incorrect. The complaint also alleged that any delay in unloading material on account of which demurrage was claimed was due to defendant's failure to furnish sufficient track space for the placing of cars for unloading. The answer was a general denial of the allegations of the complaint. The jury returned the following special verdict: “Q. 1. Was there any sum due to the defendant from the plaintiffs for demurrage on cars on the 21st of September, 1906? A. No. Q. 2. If you answer the foregoing question, ‘Yes,’ then what was the sum then due? A. $______. Q. 3. Did the defendant on the 21st of September, 1906, refuse to pay to the plaintiffs the amount due to them upon their contract for work done at Madison except upon condition of the payment by the plaintiffs of the sum of $434 claimed to be due for demurrage on cars? A. Yes. Q. 4. If you answer question No. 3, ‘Yes,’ then did such refusal on the part of the defendant so affect the plaintiff Wooley's mental condition as to render him incompetent to contract with the exercise of his free will power? A. Yes.” On such verdict judgment was entered for plaintiffs. Defendant appeals.William G. Wheeler (Edward M. Smart, of counsel), for appellant.

Frank Winter, for respondents.

BARNES, J. (after stating the facts as above).

Appellant assigns as error: (1) Refusal of the court to set aside the first finding of the jury and grant a new trial; (2) the instruction given to the jury under question 1 of the special verdict; (3) refusal of the court to grant judgment for the defendant on the ground that a voluntary payment of the demurrage charges had been made; (4) in instructing the jury as to what would constitute duress.

The rules governing demurrage charges were offered in evidence. But two of them would seem to have any application to the case. These are sections 1 and 2 of rule 5. Section 1 provides that “cars containing freight to be delivered on car load delivery tracks or private sidings, shall be placed on the track designated as soon as the ordinary routine of yard work will permit. When delivery cannot be made on account of such track being fully occupied or for any other reason beyond control of the carrier, delivery shall be made at the nearest available point.” The material part of section 2 reads: “Cars for unloading shall be considered placed when such cars are held awaiting orders from consignors or consignees. * * *”

[1] These two rules would seem to cover different situations. Section 1 appears to be applicable here. The cars were to be delivered on a car load delivery track, and such track was designated by plaintiffs. If delivery could not be made on this track for any reason, then the railroad company had the right to make delivery at the nearest available point. When it became apparent that cars could not be taken care of on the designated track, we think it was the duty of the defendant to make delivery at the nearest available point where the cars could be unloaded, and perhaps to advise the plaintiffs when the cars were so placed. There was no need of any further direction from the plaintiffs. The rule specified what should be done in case delivery could not be made promptly at the place selected.

[2] Section 2 would appear to apply to a case where the carrier was ready to make delivery and the consignee neglected or refused to designate the place where delivery was desired. In such a contingency the free time would begin to run from the time the carrier was ready to make delivery. We cannot find in the evidence any showing that any of the cars were in fact delivered to the nearest available point, or that any attempt was made to spot them at a place where they could be unloaded, except on the designated tracks, with one or two exceptions. As to these last exceptions, cars were unloaded at the place where they were spotted, and apparently within the required period.

[3] The evidence shows that plaintiffs so ordered their material that it came in a rush and in such a manner that they were unable to take care of it and find a place to store it until it was needed for use, and there is likewise considerable evidence tending to show that there was delay in...