100 S.E. 341 | N.C. | 1919
The action, as it appears from the pleadings, was brought to recover certain alleged freight overcharges for goods shipped by the plaintiff over the lines of defendant and connecting carriers. It turns out that certain freight rates had been established with the sanction of the Interstate Commerce Commission, which afterwards were duly changed and increased in amount, but the parties to this action were not aware of the charge at the time that the charges were made against the plaintiff. When the change of rates was discovered the defendant demanded the difference between the rates charged and the amount received under the old tariff and those due under the tariff of rates as amended and increased by the commission. This amount or difference was paid by the plaintiff, and it now alleges that the defendant entered into a special agreement with it as follows:
"1. The defendant undertook, promised and agreed, for and on behalf of plaintiff, that it would take charge of, present, and submit the same (that is, its claim for reparation) to the said Corporation Commission in proper form and manner and in due time for adjustment and allowance, and time and again, when this plaintiff would call upon it for settlement, stated to this plaintiff that it was then attending to the matter and would have the same presented in reasonable time; which undertaking, agreement and promise this plaintiff reasonably relied upon.
"2. Notwithstanding the defendant's undertaking, promise and agreement aforesaid, and notwithstanding it had assumed the duty aforesaid to this plaintiff, the defendant neglected and wrongfully failed and refused to do its duty, as it had agreed to do and in justice *229 and right was required to do, until more than two years after the plaintiff had paid the overcharges as demanded by the defendant and had suffered the damage aforesaid, and after all right and power to consider and allow the same were by lapse of time denied the Interstate Commerce Commission under the law.
"3. The claims and demands of the plaintiff aforesaid were, after a lapse of two years from the time the right of demand accrued, presented to the said Interstate Commerce Commission and that commission disallowed the same solely upon the ground that because of the delay aforesaid it was not permitted by law (214) to consider the same.
"4. That but for the promise, undertaking and assurance of the defendant, as hereinbefore set out, and but for the reliance of the plaintiff on the same and its belief that the defendant was performing its duty as it has undertaken to do, this plaintiff would have presented and prosecuted before the Corporation Commission the claim aforesaid, to which there was no defense and about which there was no dispute, and would have recovered the money justly due it.
"5. That by reason of the wrongful and unlawful conduct of the defendant aforesaid, and its failure to perform its duty as hereinbefore set forth, the plaintiff has been damaged in a large sum."
There is a prayer for judgment, the amount claimed being one thousand dollars.
The defendant answered and denied the material allegations as to the contract. It denied that it had overcharged the plaintiff, and averred that the plaintiff had been charged at the established and promulgated rates, and further, that the defendant could not, under the Interstate Commerce Act, have charged any less. That the defendant could not refund any of the sums paid without the same being authorized under the said law.
The jury found against the defendant as to the contract and its breach, and allowed the amount of the excess over the rates promulgated 20 July, 1911 (the old rates), as damages. Judgment was entered upon the verdict, and defendant appealed.
If we concede that the evidence tends to show a contract as alleged and not a mere gratuitous offer to lend its aid and assistance in obtaining a refund of the difference between the two rates as paid by the plaintiff, and also that the contract if made, as alleged by the plaintiff, was founded upon a sufficient *230
consideration, our opinion is that the plaintiff cannot recover as the contract is illegal, it being contrary to the provisions of the law against rebating or giving undue preferences, privileges or concessions, which is made a misdemeanor by the Interstate Commerce Act, both as to persons and corporations participating in the unlawful act. U.S. Compiled Statutes (1916), Annotated, 8 Vol., title "Interstate and Foreign Commerce," secs. 8569 and 8574, and notes, where many authorities are collected. The language of the act of Congress is very stringent in regard to the duty of the shipper to pay and of the carrier to collect the schedule rates on all shipments of freight. (215) The cases cited in notes to the sections of the compiled statutes show conclusively that the agreement for a shipment at a rate less than that prescribed cannot be recognized by the courts, and it makes no difference whether the rate has been misquoted to the shipper and received by the agent of the carrier by the mere mistake or the negligence of the latter. The only rate is the true rate as authorized by the commission. It was held in T. and R.Ry. Co. v. Mfg. Co.,
This matter has been recently considered by this Court in R. R.v. Latham,
"(1) One who engaged a railroad company to transport freight in interstate commerce is liable for the established rate on such freight regardless of any contract the shipper may have with the consignee.
"(4) A shipper must taken notice of the rates for interstate shipments, and he relies at his peril on the statements of the carrier's agents.
"(5) An interstate carrier is not estopped from recovering the balance due for a shipment by the unauthorized act of its agent in quoting an illegal freight rate. "
And, finally, the case of Cent. of Ga. R. R. v. Birmingham Sand andBrick Co., supra, where the same rule was thus stated: "Under *233 the Interstate Commerce Act the freight rate of an interstate shipment is not that named in the bill of lading or contract of shipment, but the lawful rate existing at the time, whether or not such rate is known to the consignor or the consignee, and regardless of whether the parties were misled by the carrier as to the lawful rate or whether it had posted the lawful rate as required by the statute; hence the carrier cannot by any act estop itself from demanding the lawful rate. So that the principle is firmly settled that the only rate is the rate fixed by the Interstate Commerce Commission and published, and no contract, agreement or understanding between the parties can change it. "
In this case, if recovery by the plaintiff were adjudged, he would be given a rate for the transportation of his goods and wares which would be less than that allowed to other shippers. It is no answer to the assertion to say that plaintiff would merely be recovering damages for a breach of contract and not recovering a favor from the defendant by a reduction of the published rate, contrary to the express provision of the act forbidding any concession, privilege or discrimination. It is not the manner of showing a favor to the plaintiff so much as the substance of it that we must (218) consider in passing upon the question whether there has been either a direct or indirect violation of the law. If the resultant effect is bad and comes within the prohibition it matters little what particular form it takes. The clear and ultimate result is that plaintiff will have had his goods hauled at a less rate than that which was published at the time the service was rendered. If defendant can be compelled to pay the difference, by an action in court, it can pay it just the same without such an action, that is, voluntarily. All it will have to do then, in order to circumvent the act and give the plaintiff what is, in affect, a rebate, is what has been done here, contract to render service in obtaining reparation for the amount paid in excess of the mistakenly supposed rate, and then refuse to perform the contract and instead pay the damages. Such a course would open the door wide for collusion and corrupt bargaining to violate the law, and would therefore be against public policy as declared by the act which seeks to compel equal and impartial service to all alike, and to abolish rebates and discrimination in any and every form as being in violation of the very terms of the act and opposed to the wise policy inaugurated by it, which was so firmly enforced in DuplanSilk Co. v. Am. and For. Marine Ins. Co., supra. There the defendant paid the stipulated value of one dollar per pound for the silk carried by it and lost in a marine disaster to one of the carrier's boats. The plaintiff sued on a marine policy, but the court held, as *234 we have shown, that he could not recover as, though the suit was a collateral one, and not against the carrier, it was forbidden by the Interstate Commerce Law, as amended by sec. 6 of the act of 29 June, 1906 (Hepburn Act), 34 Stat., at L. 584, prohibiting the carrier to give, or the shipper to receive or solicit, any rebate or concession for schedule rates, and no question as to the right of the shipper to recover otherwise on the policy was considered, the decision being confined to the single point above stated.
Where a contract for services is made with an illegal design in view, or for enabling the beneficiary to accomplish an unlawful object, no recovery will be allowed upon it. 9 Cys. 573; Clark on Contracts (2d Ed.), p. 254 et seq. The Court said in the Duplan Silkcase, supra: "The libellant argues that the giving of marine insurance by the railroad company is not a rebate, facility or concession connected with transportation within the meaning of the act. We think this altogether too technical. No one could contend that a carrier which charged its published rate of freight could unlawfully agree in addition to pay the shipper's life insurance or office rent or wages of any of his employees. It is next urged that this insurance was not a discrimination because it was given to all shippers equally. Nevertheless it was a violation of the act by the carrier, because (219) not stated in its tariff schedules. Indeed, the express contrary was stated, viz., that the carrier would not assume marine insurance unless it was specifically provided for. And the libellant, even though not aware of the insurance at the time the goods were shipped, is by this suit violating the act, inasmuch as it is knowingly soliciting a concession by which its shipment was being `transported at a less rate than that named in the tariffs published and filed by such carrier.' American Exp. Co. v. U.S.,
But there is another ground upon which plaintiff's recovery may be defeated. If defendant can be sued upon the alleged contract there is no way of determining with any certainty in law how the Interstate Commerce Commission would have decided the case, if it had been properly constituted before it and diligently prosecuted by the defendant carrier, in behalf of the plaintiff, if such a proceeding would have been permitted by the commission at all. It is a judicial question, and there is no way of foreseeing or foretelling what the decision would have been, or of knowing in advance what would be its conclusion, whether in favor of the shipper or the carrier. It may have ordered reparation to be made, or it may have refused to do so, in the exercise of its own judgment as to the law and merits of the case. There is no possible way, therefore, of telling beforehand whether there would be any order for reparation or for the return of a part of the money paid on the freight charges. It would be highly unseemly for a court to foretell its own opinion of a case and what *236
the decision would be if it were brought before it, and no respectable court would do such a thing, nor should any such wrong be imputed to it. Even if it should do so its opinion could be changed when the facts are developed, at any time before the decision, and it would be its duty to change it. So we are unable to say, in advance of a decision, whether the plaintiff would sustain any damages. They are, therefore, too uncertain and speculative to be safely estimated. Machine Co. v. Tobacco Co.,
But the principal ground of decision is that the tendency of such a contract, and its probable if not inevitable effect, would be to violate one of the important provisions of the Interstate Commerce Act, the one against rebates and discrimination among shippers, which was enacted to protect them and the public against such unfair and collusive agreements.
The motion for a nonsuit should have been sustained, and for this error we reverse the judgment and order the action to be dismissed.
Reversed.
Cited: In re Utilities Company,
(221)