257 F. 235 | 5th Cir. | 1919
On a former appeal (Ill. Cent. R. R. Co. v. Brooks-Scanlon Co., 241 Fed. 445, 154 C. C. A. 277) judgment for Brooks-Scanlon Company was reversed. Upon a retrial, judgment was for the Illinois Central- Railroad Company.
Suit was instituted by the railroad company on December 8, 1914. Plaintiff alleged that during the years 1907 to 1912, inclusive, the railroad, on various dates, purchased lumber from tire Brooks-Scanlon Company; that each contract provided for delivery to petitioner “f. o. b.” its rails; that the lumber was manufactured by the lumber company, at mills at Kentwood, La., from logs carried into Kentwood by the Kentwood & Eastern Railroad Company; that at the time of each of the purchases there was in effect an agreement between the Illinois Central Railroad Company' and the Kentwood & Eastern Railroad Company for a division of freight rates, by which, on all lumber manufactured from logs brought over the Kentwood & Eastern into Kent-wood, and manufactured there, and shipped over the Illinois Central to territory known as “Central territory,” the Kentwood & Eastern would be allowed 2J¿¡ cents per 100 pounds; that this agreement was known to the lumber company; that the lumber purchased was shipped by the Illinois Central to destinations within this territory, as it was understood it would be at the time the purchases were made; that, by reason of the joint tariffs, it was obligatory on the Illinois Central to pay, and it did pay, to the Kentwood & Eastern, on lumber so purchased from the lumber company (indicated by attached exhibits) the agreed division rates, amounting in the aggregate to $25,643.29; that the lumber company, having agreed to make deliveries “f. o. b.,” was under obligations to pay the expenses of the transportation from the point of origin on the Kentwood & Eastern to the Illinois Central rails. There were also allegations as to the manner of payment, indicating the causes of the errors in making payments to the lumber company without deducting amounts paid to the Kentwood & Eastern.
The answer alleged that it was the understanding of the Illinois Central and the lumber company, at the time of the delivery, that the expressions “f. o. b.,” or “f. o. b. cars,” or “f. o. b. cars I. C. tracks, Kentwood,” required the defendant to deliver lumber on board cars on the tracks at defendant’s mill in Kentwood, and that the cost of the service in making such delivery at such point, in loading the lumber into said, cars, and any other costs or charges that had accrued at the time and place of delivery, would be borne by defendant and included in the prices named; that with this understanding,' upon receipt of each written order* the defendant inserted therein the^prices it was will
In the opinion rendered on the former appeal it is said:
“It is not questioned, and, under the evidence adduced, it is not open to question, that the terms ‘f. o. b.,’ ‘f. o. b. cars,’ ‘f. o. b. cars Illinois Oentral trades, Kentwood,’ as used in the contracts of sale and purchase, obligated the seller to pay'freight charges ineuri'ed for the shipment of the lumber or the logs out of which it was manufactured, to the point át which the lumber bought was to bo delivered to the plaintiff by the seller, the Brooks-Scanlon Company; that plaintiff was entitled to a delivery of the lumber on its line free of charges.”
Upon the former trial the Brooks-Scanlon Company introduced no evidence, and the case was determined upon the pleadings of the parties and the evidence introduced by the plaintiff. Upon the second trial the pleadings were unchanged, but evidence was introduced by the lumber company upon the defensive issues made.
Knowledge of a corporation may be only through individual representatives of the corporation; and, ordinarily, knowledge resulting from transactions by an agent within his authority, or acquired by
Upon the former appeal, not only was there an absence of evidence of the understanding of defendants, but an absence of evidence of knowledge in any representative of the railroad company, from which an inference could be legitimately drawn that he had given a construction to the contract other than that suggested by the ordinary meaning of its terms. In passing upon such an issue, even the knowledge which the law imputes to a man (as the published tariffs) could not logically be considered.
In the case made out on the second trial there was proof that the requisite knowledge existed, or, at all events, there was sufficient evidence of such knowledge to authorize submission of the issue as to its existence to a jury. Mr. Bradley, purchasing agent of the railroad, admitted on the second trial that he had actual knowledge of the tariffs providing for the divisions—that he had knowledge of the fact that the lumber was made from logs that came from the Kentwood & Eastern and that the divisions were actually paid to the Kentwood & Eastern. He is also made to testify that he understood that defendants were to receive the specific prices named in the contracts, that there was nothing to be taken off the prices, that nothing was to be deducted, and that he understood that defendants so understood. From the remainder of his testimony it is to be inferred that the purport of the questions to which the witness gave his acquiescence was not realized, and little effect is given to that which would otherwise be conclusive. But, while these statements are not to be taken as an admission of complete knowledge, a jury would be warranted in assuming that he had, in addition to the knowledge admitted, knowledge of the facts it was his duty to know in the conduct of his work, and which he could easily have ascertained. If a jury should so believe, it would have a sufficient basis for a finding that the corporation had full knowledge of all of the facts, and "that it gave a practical construction to the contract, by which it is now bound.
The correctness of the propositions made in the opinion on the first
The judgment is reversed.
WARKER, Circuit Judge, dissents.