66 So. 573 | Ala. | 1914
We understand count 2, of appellant’s original complaint .to be a count in special assumpsit intending a recovery for appellee’s breach of its promise to refund payments made by appellant on account of freight charges on certain shipments of meal. Demurrer to this count was sustained, and the ruling is assigned for error.
The theory of appellant’s case, as appeared in the further progress of the trial, was that appellee, having transported corn (whether by interstate or intrastate shipments does not appear in the count) to appellant’s mill under an agreement for a “milling in transit” privilege, had unlawfully exacted an additional charge when appellant tendered the milled product for further shipment. In pursuit of this theory the count, by way of showing the consideration for appellee’s alleged promise, averred that appellant shipped corn over appellee’s line to his “plant” at Jenifer, Ala., and that these shipments were made under a tariff-schedule of freight rates which applied to “milling in transit” shipments; and the count proceeds: “It was agreed and understood that the defendant would reship the meal for the plaintiff, without any extra charges therefor, to certain points designated in said agree
The promise, for the breach of which appellant sued, not importing or implying a consideration (rather, the implication is of an unlawful agreement; that is, if we may travel outside the count and assume that appellee was a common carrier), it was necessary that the count should expressly state the particular consideration upon which it was founded. This count does not show what shipments were made under the alleged “milling-in transit” privilege, nor the ultimate destination of such shipments. We may infer, but it is not averred, that appellant had paid lawful charges according to the through rate in force on the corn from the point of origin to the place of ultimate destination, and, in the absence of such averment, it does not appear, except by inconclusive inference, which the court will not draw in favor of the pleader, that the amounts appellee promised to repay were charges in excess of the lawful rate. For this, and other reasons which might be assigned, we think the demurrer was properly sustained.
Moreover, where a plaintiff seeks, after nonsuit, to review the entire proceeding in the trial court, the doctrine of error without injury is applied to rulings on the pleadings to an extent perhaps that has not been practiced in cases where an appeal is taken from final judgment in favor of the defendant.—Andrews v. Hall, 132 Ala. 320, 31 South. 356; Tobias v. Josiah Morris & Co., 132 Ala. 267, 31 South. 498; Zirkle & Moore v.
Appellant found difficulty in proving that the corn from which his meal was milled had been shipped under a “milling in transit” contract, and the terms of such contract, as it was necessary for him to do in order to establish his alleged right to an abatement and return on the charges paid when the milled product was sent forward to its ultimate destination. He argues that the rulings below amounted to a denial of the validity of all such contracts. Shippers are not en titled, as matter of right, to mill grain in transit and forward the milled product under the through rate in force on the grain from the point of origin to the place of ultimate destination;, on the contrary, milling in transit is a special privilege allowable at designated points, and for which extra compensation is usually exacted by carriers under the control and direction,,
That the fact may have been proved so will not be disputed, for the Interstate Commerce Commission Act prescribes that every common carrier, subject to its provisions, shall print and keep open to public inspection schedules showing the rates and fares and charges for transportation of passengers and property which any such common carrier has established and which are in force at the time upon its route; and every such carrier shall file with the Commission copies of its
The shipments of corn, out of which this controversy arose, were interstate shipments, and this law applied to them. Appellant had served notice on appellee to produce its “Milling in Transit Schedules” in force at Jenifer. ' In response to this notice and a subpoena duces tecum, appellee’s commercial agent produced the paper offered in evidence, testifying that it had been furnished to him by appellee’s general freight agent for quotation to the public. Appellant further showéd that the paper was identical-with the schedules kept in appellee’s office at Jenifer for the information of the pub- " lie. It is safe to assume that this schedule was not the result of direct corporate action by defendant, but was prepared and put into effect by corporate agents with authority in the premises. In the circumstances shown, we are of opinion that the’paper and its contents should be regarded as an admission provable for the purposes of this case. It is possible that the schedule shown.
Of appellee’s suggestion that there is nothing in the document from which the court could ascertain the rate of charge on “milling in transit” shipments to Jenifer or find that plaintiff was entitled to recover, and hence that its exclusion, if error, was harmless, we think we may say in brief that, while it is true the paper does not sIioav the rate of charge, it was admissible to prove the essential fact of a “milling in transit” arrangement at Jenifer. There was other compentent evidence from Avhich the jury may have inferred that appellant’s shipments were made under the “milling in transit” privilege authorized by appellee, and possibly also the amount of the charges for which appellee thereupon became legally liable, and SO' by inference the amount of the refunds to which he may have been entitled, though how satisfactorily this last inference may have appeared to the triers of fact we need not say.
After the foregoing opinion had been prepared, appellee filed an additional brief in which it contends that the bill of exceptions fails to show anything more than a voluntary nonsuit, and will not therefore sup
In the present case the bill of exceptions, after setting forth various rulings on the admission of evidence to which exceptions were duly reserved, including, but not in the last place, that one to which we have written, concluded: “The defendant objected to this testimony, and the court sustained its objection, and plaintiff duly excepted, whereupon plaintiff took a nonsuit with bill of exceptions” — a very different record from that shown in Long v. Holley. In Downs v. Minchew, 30 Ala. 86, the recital of the record was that “the plaintiff- excepted to the ruling of. the court and takes a nonsuit.” The court was of opinion that the appellant had sufficiently reserved the question decided adversely to him to justify them in considering it, citing Duncan v. Hargrove, 22 Ala. 150, and Blackburn v. Minter, 22 Ala. 613. Downs v. Minchew was cited as authority in Laster v. Blackwell, 128 Ala. 143, 30 South. 663. Whatever may be said of that case, the court has thought it proper, on the authority of the cases mentioned, to' review the questions of evidence presented by this record, in which it appears that plaintiff took a nonsuit in consequence of adverse rulings and indicated at the time his purpose thereby to have the questions reserved for review.
2. The majority of the court, including the members other than de Graffenried, J., and the writer, decline to express themselves on the question presented by the
Reversed and remanded.