274 N.W. 715 | Mich. | 1937
This cause involves a claim for freight and demurrage charges aggregating $507.68 on three carloads of coal. The finding of facts by the trial court is as follows:
"On February 18, 1932, the Pursglove Coal Mining Company delivered two carloads of coal, loaded in cars numbered PRR 178021 and NYC 432068 to the Monongahela Railroad Company at Pursglove Mine No. 2 located near Pursglove, West Virginia, and directed the carrier to transport said carloads to the Brown-Ward Company, at Detroit, Michigan, via the Pittsburgh Lake Erie and New York Central and Michigan Central railroads. On the following day a third carload of coal loaded in car numbered PRR 729643, was delivered with the same shipping instructions. The shipping instructions were given by written mine tags to Conductor Sidwell of the Monongahela railroad, who accepted the cars for transportation and moved them from the mine. The original tags showed defendants as consignee and direct 'charge freight to consignee.' The Pittsburgh Lake Erie Railroad Company issued a uniform freight bill of lading on each car.
"On February 19, 1932, while the cars were in transit, defendants directed plaintiff to divert cars numbered PRR 178021 and NYC 432068 to A.F. Weast to order. On the same day A.F. Weast directed plaintiff to deliver the cars on arrival to *77 Holmes Coal Company. The same instructions were given on February 23, 1932 for delivering the car numbered PRR 729634. These orders were given by telephone to clerks Jones and Payne and were confirmed in writing.
"Defendants' orders specified: 'Through rate only to apply. If these instructions cannot be followed, advise us, as we will not be responsible for any excess charges or combination of local rates.'
"The carloads were delivered to the Holmes Coal Company on their private siding in Detroit, Michigan. Car numbered PRR 178021 was placed February 24th and unloaded February 25th. Car numbered NYC 432068 was placed February 24th and unloaded February 27th. Car numbered PRR 729634 was placed February 25th and unloaded March 1st.
"At the time the Brown-Ward Company, defendants herein, reconsigned said cars to Weast and when the said Weast reconsigned the said cars to the said Holmes Coal Company at Detroit, Michigan, the formal reconsigning orders, both parties particularly specified 'charges to follow.'
"The Holmes Coal Company was an assumed firm name. The proprietor, Russell DuPuis, was on the plaintiff's credit list. The carloads of coal were placed on the Holmes Coal Company's siding, and were unloaded without the charges being collected.
"About two weeks after delivery, Russell DuPuis was adjudicated a bankrupt. Plaintiff's claim for these charges was allowed as a general claim against his estate, but no dividends were available for general creditors when his estate was closed. No portion of the freight charges were collected from the Holmes Coal Company, and plaintiff now seeks to collect them from defendants. The legal charges on the three carloads of coal, under tariffs filed with the Interstate Commerce Commission total $507.68, being based on a through rate of $2.60 per ton from point of origin to destination." *78
The trial court found in favor of defendants. Plaintiff appeals and contends that the owner and consignee of shipments of freight, moving in interstate commerce by rail, who reconsigns the shipments at destination to a third person with directions "charges follow" is liable for the published tariff charge accruing on the shipments.
It appears that this cause is one of first impression in Michigan. In 4 R. C. L. p. 857, cited in Pennsylvania RailroadCo. v. Marcelletti,
"Ordinarily a carrier has a right to look for his compensation to the person who required him to perform the service by causing the goods to be delivered to him for transportation, and that person is generally of course the shipper named in the bill of lading, or the consignor."
Defendants contend that where shipments are reconsigned, the carrier makes a definite contract to collect from the reconsignee and may not therefore collect from the original consignee; and rely upon Chesapeake Ohio R. Co. v. SouthernCoal, Coke Mining Co.,
The general rule appears to be that one who receives or exercises dominion over goods by ordering a reconsignment, in the absence of some further element of fact which clearly destroys the presumption of ownership or contract thereby established, is responsible for freight charges accruing up to the time of such receipt or reconsignment order. See 105 A.L.R. 1216 and cases cited therein. But, what may one who directs a reconsignment do to relieve himself from freight charges? The leading case upon this subject is New York Central R. Co. v.Warren Ross Lumber Co.,
"As to plaintiff, defendant stood in the relation of owner of the carload of lumber. The bill of lading designated it as consignee. That fact is in itself evidence of ownership. It does not appear from the agreed facts that plaintiff had knowledge or notice that defendant was not the owner, or that defendant was not in fact such owner. The Schieck-Johnson Company might, for all that appears, have been the agent of defendant whose duty it was to take delivery *80
on its behalf. As defendant was the presumptive owner, if it accepted the freight in the capacity of owner, the law implied a promise on its part to pay the charges (Pittsburgh, C., C., St. L. R. Co. v. Fink,
"The liability of the consignee under these conditions is analogous to the liability of the consignor under the terms of the bill of lading that the consignee shall pay the freight. Such a direction does not exonerate the consignor from liability. The directions given by defendant neither modified the implied contract between carrier and consignee whereby the consignee assumed liability for freight charges, nor amounted to an offer to accept the goods only on condition that freight charges should be collected of the Schieck-Johnson Company. Doubtless plaintiff might have refused to deliver to the Schieck-Johnson Company and retained the goods until its lien was satisfied by the payment of *81 the freight. Doubtless defendant by its instructions recognized such right when it qualified its directions as to delivery. But the directions were for the benefit of the carrier, not for the benefit of the defendant. The carrier was not bound at its peril to enforce payment of freight from the Schieck-Johnson Company and its right to resort to the defendant under the contract was not impaired by delivery of the freight under its direction. The language used in defendant's letter was not contractual. Its effect was merely to give plaintiff an option to demand payment from the person to whom it delivered the goods."
See, also, Pennsylvania R. Co. v. Lord Spencer, Inc., ___ Mass. ___ (
We think that the act of dominion upon the part of defendants in ordering reshipment created a liability upon them and the same was not discharged by the extension of credit to the Holmes Coal Company.
The judgment of the trial court is reversed and a judgment may be entered in the circuit court in *82 favor of plaintiff for the sum of $507.68 and interest. Plaintiff may recover costs.
FEAD, C.J., and NORTH, WIEST, BUTZEL, BUSHNELL, POTTER, and CHANDLER, JJ., concurred.