94 Va. 422 | Va. | 1897
delivered the opinion of the court.
The questions of law and fact in these two cases being identical, they will be considered together.
Williams & Go. and a number of others, describing themselves as merchants, doing business as such in the city of Norfolk, who sue on behalf of themselves and other merchants similarly situated, filed their bill in the Hustings Court of the said city, averring that they had been required by the defendant corporation, in each case, in addition to the amount required and paid for the transportation of freight, to pay a charge by way of wharfage, which the defendant enforces by refusing to deliver freight upon which the charges are made until the same are paid. They aver "that it is the duty of a common carrier to furnish at ios terminus in Norfolk facilities for the receipt and delivery of freight without estra compensation, and that in persisting in charging and collecting wharfage it was acting illegally. They also charge that the acts complained of constitute a discrimination against them and others similarly situated, and against the commercial and mercantile interests of the city and port of Norfolk. They charge that these wrongful and illegal collections have continued for a number of years, and that they amount in the aggregate to many thousands of dollars each year, which the defendant should be required to account for and return to them. The bill in each case concludes with a prayer for an injunction restraining the defendant from continuing to impose and collect a charge for wharfage in addition to the sum to which it is entitled for transportation and freight, and that it be required to render an account showing the amount of wharfage collected of the plaintiffs and those for whom they sue, during the time it has been charged and collected, and that a decree be made in their favor for the amounts so ascertained.
The case was heard before the Corporation Court on the bill, demurrer, answer and affidavits, and thereupon the court granted an injunction “restraining and prohibiting the defendant, its servants, clerks, and employees from collecting of the said plaintiffs and other merchants of the city similarly situated, charges for wharfage upon the goods, wares, and merchandise sent and received by them over the transportation line of the defendant company, without prejudice to the defendant to charge for the storage or wharfage for goods after notice of their arrival, and demand for their removal, and the failure of the owner or consignee to remove the same within a reasonable time after such notice and demand.”
From the 27th of June, 1892, until the 21st of February, 1895, no further steps appear to have been taken in the cause. On the latter day the defendant by its attorney moved the court to dissolve the injunction heretofore awarded in the cause, which motion the court overruled. The defendant then filed its.plea of the statute of limitations of three years
On the 7th of March, a decree was entered referring the cause to a commissioner to “take and report an account of
So far as the order granting the injunction is concerned, it appears to be substantially in accordance with the answer of the defendant, has been acquiesced in by the defendant from the time it was entered, and the practice which it was intended to prevent has been abandoned. We shall not, therefore, further consider that feature of the case.
The prayer for an account should not have been granted. An order of reference is not awarded to enable a plaintiff to make out his case, nor until it has been ascertained that the plaintiff has a right to demand it.
The law is well stated in 2 Barton’s Oh. Pr., at page 630: “The settled rule in respect to orders of reference is that before an application for one shall be granted it must appear, with reasonable certainty, that an order will be necessary, and it will not be made upon the suggestion that in some contingency one will be required; for it will not do to put the defendant to the trouble and expense of rendering an account until it is ascertained that the plaintiff has a right to demand it, nor v* ill a reference be made for the purpose oi furnishing evidence in support of the allegations of a bill;” and the cases there cited, and especially Lee County v. Fulkerson, 21 Gratt. 182; and Sadler v. Whitehouse, 83 Va. 46.
Though it were conceded that a court of equity has jurisdiction in such a case to grant the injunction, and that having taken jurisdiction to grant the injunction it may administer full relief to the plaintiffs, upon which subject we express no opinion, it would still remain for the plaintiffs to state in a proper manner their right to the additional relief prayed for. There is an averment that the plaintiffs have in the course of years paid large, sums of money to the defend
Without passing upon any other question the decree complaied of must, for the reasons stated, be reversed.
Reversed.