95 Vt. 81 | Vt. | 1921
This case was heard below on an agreed statement of facts, judgment was for the defendants, and the case is here on plaintiff’s exception to the judgment.
The material facts in the case are these: The defendants, who are granite manufacturers located in the city of Barre, sometime prior to March 12, 1915, entered into a contract with Matthew & Mather, of Norfolk, Nebraska, to manufacture for the latter certain granite monuments to be delivered f. o. b. City of Barre. The defendants delivered these monuments to the plaintiff, loaded on cars furnished by it, at the City of Barre,
The plaintiff forwarded the monuments over its own and connecting lines of railroad to Norfolk, Nebraska, the delivering road being the Chicago & Northwestern. Upon the arrival of the shipment at Norfolk, the agent of the Chicago & Northwestern notified Matthew & Mather, and presented them a freight bill for $370.00. Matthew & Mather claimed that the correct charge was $344.49, whereupon the agent made out a receipt for the shipment at the rate claimed by Matthew & Mather, and they paid him that amount and signed the receipt, and he delivered the monuments to them. Later, it was discovered that the rates as shown by the tariff on file with the Interstate Commerce Commission ánd in legal force, at the time, was $367.00; whereupon the Chicago & Northwestern tried to collect the unpaid balance from Matthew & Mather, but, failing to do so, on December 7, 1916, demanded payment of the defendants, and, the same being refused, this suit was brought. The defendants had no knowledge that the freight charges had not been paid until they received notice from the Chicago & Northwestern, at which time one of the consignees had deceased, leaving no estate, and the other was insolvent.
The only question here is whether on these facts the plaintiff is entitled to recover.
That case was followed in Great Northern Ry. Co. v. Hocking Valley Fire Clay Co., 166 Wis. 469, 166 N. W. 41, where the consignor was held liable for freight charges, although the bill of lading contained a provision like the one before us. There, as here, the contention was that this provision was an express agreement by which the owner or consignee was made liable for the freight charges, the effect of which was to release the consignor from liability, but the court said: ‘ ‘ The benefits accruing to the carrier under the terms of this condition of the bill of lading do not -embrace an agreement releasing the consignor. The condition confers on the carrier the right to collect the freight from the owner or consignee without changing the liability of the consignor.” ,
In Duncan v. United Steel Co. (D. C.) 244 Fed. 258, an action against a consignee, heard on demurrer to the complaint, the West Virginia case was cited with approval. After reciting the material allegations in the complaint, among which was an allegation that the bill of lading contained a provision that ‘ ‘ The owner or consignee shall pay the freight and all other lawful charges,” the court said: “It is settled law that the shipper or consignor is, on the facts above stated, under a contract obligation to pay the freight charges, and that this obligation may be enforced regardless of any promise contained in the bill of lading requiring the consignee to pay or regardless of any new obligation assumed by the consignee to pay the same not amounting to actual payment.”
We have not found a case, and we doubt if one can be found, where the provision relied upon by the defendants has been given the construction which they contend for.
The plaintiff contends that no agreement can exempt the shipper from liability, and cites in support of this proposition Georgia Ry. Co. v. Creety, 5 Ga. App. 424, 63 S. E. 528, and B. & O. S. W. R. Co. v. New Albany Box & Basket Co., supra. See, also, Cincinnati, N. O. & T. P. R. Co. v. Vredenburgh Saw Mill Co., supra; Jelks v. Philadelphia & R. Co., 14 Ga. App. 96, 80 S. E. 216, and Boise Commercial Club v. Adams Express Co., 17 Interst. Com. Com’n R., 115, 121. In the latter case it is said: “Since the law imposes upon a carrier the absolute duty to collect freight charges, it may proceed against either the consignee-or the consignor; and, to relieve itself from the penalty imposed by law for failure to exact the charges, if it fails to collect from the consignee it must proceed against the consignor. This is required as a matter of public policy. It is not only the right, but the duty, of the carrier to thus collect the charges.”
The fact that the title to the monuments vested in the consignees when the monuments were loaded on the cars has no force,
Judgment reversed, and judgment for the plaintiff for $22.51 and costs.