100 Ga. 754 | Ga. | 1897
In fissMng 'the 'Mil ¡of lading -.the carrier reserved an option as to the mode of sMpment, and the price was to-
The weight of 'the eight plalbes of glass 'appears to have been 1,550 pounds. If all of them had been shipped in a box-car, the freight would have been $17.67; if all had been shipped on a flat car, the freight would have been $73.00. The carrier charged $87.3Í for the two shipments. This, without explanation on the part of the carrier, is an overcharge according to the contract. Section .'2316 of the Civil Code provides, in subábamce, 'that where .any common carrier shall demand and receive, for goods shipped from within or without this State to any point ir. this State, any overcharge or excess of freight over and beyond ¡the proper or oomtnadt ralbe of freight, and a. demand in writing for the return or repayment of such overcharge is made by the person paying the same, the common carrier shall refund said overcharge within thirty ■days from said demand; and if it shall fail or refuse to do ¡so within thirty days, then it shall be liable to said person making the overpayment in an amount double the amount •of the overpayment. This being prima facie an overcharge, the plaintiff having paid it and given the written notice required, and the common carrier having failed to •refund it within the thirty days, the plaintiff was entitled under the code to recover it in an action brought for that
It is contended that the common carrier, having reserved to itself in the contract an option like the one in the-present case, has the right to exercise its option to advance-its own interest and not the interest of the shipper, and. that inasmuch as this option was to ship the glass in either kind of car, it could divide the shipment as it did, if it was-to its interest to do so. The rule, however, seems to be the-contrary of this. It is laid down in Hutchinson on Carriers, section 313a, -ais follows: “Where a ooii'toaiet foir the* transportation of goods gives the carrier an option between* modes of transportation, this option must be exercised with-regard for -tbe interests of '(the shipper; -and it is a breach of’ the contract to exercise it to his disadvantage, unless it is* done in good faith and under circumstances which seem to-* demand it.” See also Blitz v. Union Steamboat Co., 51 Mich. 558; s. c. 17 N. W. R. 55, decision by Judge Cooley.. We -think therefore 'tlhlalt where -a carrier has an option*: of -this land, he amust exercise it reasonably, under the* circumstances, to the beet intereabs of -the «consignee or* shipper; and it would be a breach of contract to exercise-it to -the diisaidvanltage of Itthe consignee ox shipper, unless-, it be done in good faith and under circumstances which-seem to require it. We think also that the burden is upon* the carrier to show that it did exercise the option reasonably under the circumstances. If the carrier adopts a mode-
Judgment reversed.