8 Ga. App. 817 | Ga. Ct. App. | 1911
The Central of Georgia Railway Company brought suit to recover from E. G. Willingham & Sons an amount alleged to be due on freight charges. The case was tried upon an agreed-statement of facts, which was substantially as follows: Three cars of lumber were bought by E. G. Willingham & Sons from T. E. & A. W. Whittle of Thomaston, Georgia, which the latter agreed to deliver free on board cars/Atlanta, Georgia. In other words E. G. Willingham & Sons were to pay the freight on' the lumber from Thomaston, Georgia, to Atlanta, and deduct the amount thereof from the purchase price of the lumber, and only pay T. E. & A. W. Whittle the remainder of the purchase price. The lumber, in due course, was shipped, and E. G. Willingham & Sons paid the agent of the Central of Georgia Railway Company at Atlanta the amount of freight charged and demanded, and took possession of the lumber,. and thereafter paid the shippers at Thomaston the purchase price of the lumber, less the freight charges paid to the railway company. Afterwards the railway company notified E. G. Willingham & Sons that the amount of freight charged was $12.35 below the amount of freight which should have been charged, at the rate prescribed by the railroad commission. That the rate charged is $12.35 less than the' rate prescribed by the railroad commission was admitted by Willingham & Sons, but they assert that they were in ignorance of this fact until after they had paid for th'e lumber.
Under this agreed statement of the facts, we think the defendants were liable for the difference between what they paid as freight and
Upon the hearing the judge sustained the certiorari in this case and remanded the case for another trial. We think this was error. If questions of fact were to be reviewed as being involved in the case, the certiorari should have been dismissed, because there had been no appeal to a jury in the justice’s court, and the remedy which should have been first invoked was appeal, and not certiorari. Tn this case, however, the only issue is one of law, and the superior court should have rendered a final judgment. In Georgia Railroad v. Creety, supra, Judge Powell in delivering the opinion of.the court said: “Though a common carrier, by mistake or otherwise, quotes a shipper a rate lower thán that stated in the schedules, and delivers the goods upon the payment of the charges calculated according to the rate so quoted, the carrier may nevertheless thereafter demand of the shipper the difference between the rate collected and that which should have been collected.” ' Creety was the owner as well as the shipper. This ruling fixes the rights of the plaintiff carrier in this case, unless a distinction can be drawn between an interstate shipment and an intrastate shipment, — in other words,
Conceding, then, that the railway company has a right of action, and that it should recover either of Willingham & Sons or of T. E. & A. W. Whittle, of whom should payment be required, of the former or of the latter?’ The answer to this question does not depend upon the relation the party from whom the freight was