111 A. 341 | N.H. | 1920
The question presented relates to the construction of the bill of lading under which the property was received by the plaintiff and shipped from Milford in this state to Milford in Massachusetts. Was the defendant, the shipper, liable for the balance due on account of the freight? It is important to bear in mind that the railroad had no knowledge and is not chargeable with notice that the sale of the granite as between the parties to it was completed in this state when it was loaded on the cars and billed to Hutchings as consignee. It is a]so important that in the bill the defendant was represented as the owner of the property and the consignor. The inference from these facts, in the absence of evidence to the contrary, is that the plaintiff understood that the defendant was the owner of the property which he desired to be delivered to the consignee. There is nothing to indicate that it was informed the defendant was acting as the agent of Hutchings or that the latter was the owner of the property. The expression therefore in the contract that "The owner or consignee shall pay the freight" meant that the defendant would pay for the transportation if Hutchings failed to pay it. It was inserted merely for the convenience of the carrier and not as releasing the defendant in any sense from liability for the freight to the plaintiff. Holt v. Westcott,
As presumptively the plaintiff had complied with the federal statute with reference to the filing of rates for the transportation of property over its lines, a mistake in exacting the legal rate from the defendant did not relieve the latter from the duty of paying or reimbursing the former for the undercharge. Baltimore c. R. R. v. Company,
Nor does it appear that the plaintiff after discovering the error in the freight charged in the first instance unreasonably delayed notifying the defendant of the fact. In fact it appears it acted expeditiously. It performed its full duty under the circumstances in seeking to recover of the defendant not only what was due for the service performed but what it was required by the statute to collect. Neither the fact that the consignee paid the freight demanded upon the delivery of the goods to him, nor the fact that his acceptance of them was notice to the carrier that he was the owner of them, operates as a discharge of the consignor of further liability for the undercharge. Baltimore c. R. R. v. Company, supra. The consignor assumes full liability for the freight. If he does not discharge this liability in the first instance but leaves it to be discharged by the consignee, the failure of the latter to do so in full or in part does not relieve him of that liability as between him and the carrier. His liability continues for the part of the freight left unpaid by the consignee, as it would for the entire freight bill left unpaid by the latter. Coal c. Ry. v. Company, supra. The consignee's payment of a portion of the freight due is not equivalent to his exclusive assumption of the duty to pay the remainder. *467
If the decision in Yazoo c. R. R. v. Zemurray, 238 Fed. Rep. 789, cited by the defendant, is opposed to this result, it is contrary to the principles of most of the authorities, and cannot be followed. As stated in Central R. R. v. MacCartney,
The mistake in the weight of the stone upon which the freight was based has the same effect as a mistake in rates. The shipper did not pay what he ought to have paid for the service, and is therefore liable therefor. Pennsylvania R. R. v. Mogi,
Judgment for the plaintiff for $13.
YOUNG, J., dissented: the others concurred.