273 Mass. 583 | Mass. | 1931
This is an action of contract originally brought by the Lehigh Valley Railroad Company, but through an amendment to the writ prosecuted by the New York, New Haven and Hartford Railroad Company, to recover the sum of $510.62 for unpaid freight on two carloads of tomatoes shipped on or about June 18, 1925, from Hazelhurst, Mississippi, by mesne diversions to Boston, in this Commonwealth, where they were delivered to
The statement of facts discloses that on or about June 18, 1925, two carloads of tomatoes were shipped from Hazelhurst, Mississippi, one consigned to the shipper at Mounds, Illinois, by the Illinois Central Railroad Company, a common carrier engaged in interstate commerce, the other consigned to the shipper at Indianapolis, Indiana, by said Illinois Central Railroad Company. This railroad company issued a bill of lading upon each shipment, and undertook and commenced the carriage of the tomatoes in accordance with its terms. While in transit both cars were diverted and reconsigned to one Norman, at Jersey City, and, on their arrival at Jersey City, were again diverted and reconsigned to the defendant at Boston. A freight waybill was issued upon each car, and both waybills showed that the shipments were made collect. Upon the reconsignment of the two cars to the defendant the plaintiff’s freight agent issued a substitute waybill on each-car. The freight agent at Jersey City by accident and mistake made a notation on the waybills to the effect that freight charges had been prepaid on each .car and that only a certain amount of freight charges from Jersey City to Boston was due. Before paying the freight bills presented, the defendant inquired of the plaintiff as to the correctness of the bill, and asked for a confirmation of the fact that the freight charges from Hazelhurst to Jersey City on each car had been prepaid. It was informed by the plaintiff that this was the fact, and that the freight charges from Jersey City to Boston only were due. Upon the second car in addition to freight charges there was a charge for refrigeration from Cleveland to Boston. When the plaintiff’s agent at Jersey City issued the substitute waybills above referred to, he also issued a substitute waybill in place of one issued by the New York Central Railroad Company. By mistake and inadvertence he noted on the third substitute waybill that $55 had been prepaid
The pertinent provisions of § 2 of the interstate commerce act (24 TI. S. Sts. at Large, 379, as amended by 41 U. S. Sts. at Large, 479, § 404) are as follows: “... if any common carrier subject to the provisions of this Act shall, directly or indirectly, by any special rate, rebate, drawback, or other device, charge, demand, collect, or receive from any person or persons a greater or less compensation for any service rendered, or to be rendered, in the transportation of passengers or property or the transmission of intelligence, subject to the provisions of this Act, than it charges, demands, collects, or receives from any other person or persons for doing for him or them a like and contemporaneous service in the transportation or transmission of a like kind of .traffic or message under substantially similar circumstances and conditions, such common carrier shall be deemed guilty of unjust discrimination, which is hereby prohibited and declared to be unlawful.” Section 3 (2), as amended by 41 U. S. Sts. at Large, 479, § 405, reads: “ ... no carrier by railroad subject to the provisions of this Act shall deliver of relinquish possession at destination of any freight transported by it until all tariff rates and charges thereon have been paid . . .” It is to be noted in passing that § 3 (2), supra, was amended by act of March 4, 1927, 44 U. S. Sts. at Large, Part 2, 1447, to permit consignees other than the shippers, as here, to escape liability for freight upon giving notice of the fact of their agency and of the absence of beneficial interest. It is to be further noted that this amendment was after the instant cause of action had arisen and that the specified notice was not given.
The defendant concedes that where error or misrepre
So ordered.