142 N.Y.S. 43 | N.Y. App. Div. | 1913
Lead Opinion
This case was submitted to the trial court on an agreed statement of facts, which relate to interstate commerce and present the question as to whether, where through inadvertence or mistake the carrier fails to charge the full amount of the freight required by the Interstate Commerce Act, so called, and its filed tariff schedules, the consignee of the goods for sale who accepts delivery and pays the stated charges, and thereafter sells the goods and accounts to his principal, the shipper in another State, therefor, deducting the freight charges paid and his commissions and other expenses, and transmitting to his principal the balance, is liable to the carrier for the balance of the freight charges which should have been imposed.
In the month of June, 1907, one Franklin of Adairsville, Gfa., who was the owner of two carloads of peaches, shipped them from there by the Nashville, Chattanooga and St. Louis Railway,. consigned to the defendant, routed over the plaintiff’s line, as the final carrier, from Philadelphia, and the initial carrier issued therefor non-negotiable bills of lading. The peaches were delivered to the defendant at the city of New York, and
It is contended in behalf of the plaintiff that the provisions of the Interstate Commerce Act, designed to secure equality in shipping rates (32 IT. S. Stat. at Large, 847, chap. 708), and the public policy of the Congress manifested thereby,. imperatively require that the consignee shall be held liable where the carrier has, through mistake or inadvertence, thus delivered goods without requiring payment of the full lawful rate of freight. It is well settled that it is unlawful for a carrier to contract to carry interstate freight at a lower rate than its duly scheduled tariff rates, and that, neither by contract nor through mistake or inadvertence, can it estop itself from demanding and collecting the balance of the lawful rate, where it has delivered goods without charging the same in full. (Illinois Central R. R. v. Henderson Elevator Co., 226 U. S. 441; Union Pac. R. Co. v. American Smelting & Refining Co., 202 Fed. Rep. 720; Baltimore & Ohio R. R. Co. v. La Due, 128 App. Div. 594.) It does not follow, however,
It is conceded by the learned counsel for the respondent that the defendant would not be liable for the balance of the freight charges, if he had notified the plaintiff,, or the plaintiff had known when it delivered the goods to him that he was acting as a commission agent, and the authorities so hold. (Elwell v. Skiddy, 77 N. Y. 282.) I fail to see any distinction in principle, depending on the question of knowledge on the part of the carrier with respect to whether the consignee was acting as agent. There was no deception by the consignee as agent of the consignor; he was ready to pay the amount of the charges for which the carrier claimed a Hen, and he did so. The Interstate Commerce Act does not prohibit a carrier from giving credit
We are not now required to decide whether, if this error had been discovered, and the claim had been made, while the defendant had the peaches or the proceeds thereof on hand, and before accounting to his principal, he would be liable, or the. property or the proceeds thereof could be reached to the extent required to satisfy the plaintiff’s claim. The only theory on which he could possibly be liable for the balance of the freight charges would be that he held the property or the proceeds thereof, and had received or was in a position to receive the benefit resulting from the delivery of the goods without payment of the lawful freight charges in full for which the carrier had a lien. Since before the. claim was made the consignee had remitted the surplus proceeds.of the sale to his principal, it is manifest that the carrier .would be estopped from
I am of opinion, therefore, that the determination of the Appellate Term and the judgment of the Municipal Court should be reversed, with costs, and that the defendant should have judgment on the submission for the dismissal of the complaint, with costs.
Ingraham, P. J., Dowling and Hotchkiss, JJ., concurred; McLaughlin, J., dissented.
Dissenting Opinion
When the peaches. were delivered by Franklin to the Nashville, Chattanooga and St. Louis Railway at Adairsville, G-a., they were consigned to the defendant at New York city. No arrangement was made by Franklin with the railroad company as to the payment of the transportation charges and nothing was said on that subject. When the peaches arrived in New York city the defendant, the consignee, was, presumptively, the owner of them and when he accepted them from the railroad company he became, prima facie, liable to pay the freight thereon. The railroad company had a lien on them to this extent and when it released its hen without payment of the full amount of freight the law implied a promise on his part to pay what was due. ■ As between him and Franklin, he had agreed to pay the freight.
At and before the shipment and delivery of the peaches the plaintiff had duly published and filed with the Interstate Commerce Commission and had posted and kept open for public
Central Railroad Co. v. McCartney (68 N. J. L. 165) is distinguishable from this case. There the transportation was not under an act Of Congress relating to interstate commerce* and besides the railroad company, when it accepted the ties for shipment, knew that the consignor was to pay the freight.
The determination of the Appellate Term should be affirmed, with costs. .
Determination and judgment reversed and judgment ordered for defendant as directed in opinion. Order to be settled on notice.