Laws

An amendment to a petition Post Date: Fri, 25 Jul 2008 20:43:59 +0000
The necessary allega- tion may be supplied by amendment and evidence introduced to show what was a reasonable ti Me Cen- tral RCo v Hasselkus, 91 Ga 382, 55 A M Eng RCa S 586 1 Buckley v Great Western RCo, 18 Mich 121 Sufficiency of Allegatio N Although the contract of carriage does not specify a time for the shipment of cattle, a complaint which alleges that they might have been shipped by the company when delivered to it, and that in consequence of a delay of twenty-two hours in shipping them the cattle did not arrive at their des- tination until after business hours on Saturday, and too late for the market, sufficiently shows that the defendant did not comply with its obligation to ship the cattle within a reasonable ti Me Cincinnati, etc, RCo v Case, 122 Ind 310, 42 A M Eng RCa S 537- General Allegation Sufficient on Special DemurreRIn an action to recover damages for a wrongful delay in transporting property, a complaint which alleges generally a failure to transport and deliver within a reason- able time is sufficient, in the absence of special demurrer, without alleging what would have been a reasonable ti Me Palmer v Atchison, etc, RCo, 101Cal187 2 Vicksburg, etc, RCo z/ Rags- dale, 46 Mis S 459 3 Gulf, etc, RCo v Maetze, 2 Tex App Civ Ca S, 631; Vicks- burg, etc, RCo v Ragsdale, 46 Mis S 459 Illustration S In an action for wrongful delay in the transporta- tion of machinery, no recovery can be had for the rental value of the machinery during the delay under a petition which fails to allege the rental and to claim the rental value thereof Gulf, etc, RCo v Maetze, 2 Tex App Civ Ca S, 631 In an action for damages resulting from delay in the shipment of a boiler and an engine, only ordinary damages can be recovered under a petition which does not allege that the car- rier had notice of their intended use and of the necessity for promptness in shipment. Rental value cannot be allowe d Gulf, etc, RCo v Gilbert, 4 Tex Civ App 366 Com- pare Gulf, etc, RCo v Pettit, 3 Tex Civ App 588 To authorize a recovery for delay in transportation of machinery, result- ing in the suspension of plaintiff's milling operations, the petition must allege not only that such suspension was caused or continued by such de- lay, but also that such facts had been communicated to defendant as would have reasonably indicated the result which would or might have been ex- pected to flow from such dela Y Such elements of damage would not neces- sarily result from such delay; nor are they such as might be reasonably supposed to have entered into the contemplation of the respective par- ties at the time the contract was made, as the probable result of its breac H Pacific Express Co v Dar- nell, 62 Tex 640 Amendment. An amendment to a petition, in an action for damages for negligently delaying the shipment of machinery, in which it is alleged that the defendant's agent had notice that the operation of defendant's mill would be suspended until the ma- chinery should be returned, does not state a new cause of action, but mwe- v ACTIONS FOB NEGLIGENCE OR MISFEASANCE IN DELIVERY what it Include S This class includes : I Actions for wrongful delivery to third person S 2 Actions for wrongful refusal to deliveR3 Actions for negligent delivery whereby goods are lost or injure d 1 Form of Action TroveRThis form of action will lie for wrongful delivery to third persons, 1 for refusal to deliver, 2 or for negligence in delivery whereby goods are lost or injure d 3 Assumpsit may be brought on the contract of carriage for a wrongful refusal to deliver good S 4 Detinu e So also detinue lies for the wrongful refusal to de- liveR5 Eeplevi N And it has been held that replevin is an appropriate remedy therefoR6 ly perfects the cause of action already definitely state d Pacific Express Co v Darnell (Tex 1887), 32 A M Eng RCa S 544 1 Viner v New York, etc, Steam- ship Co, 50 N Y 23; Bush v Romer, 2 Thom P C ( N Y) 597; Hawkins v Hoffman, 6 Hill ( N Y) 586; Bullard v Young, 3 Stew (Ala) 46; Libby v Ingalls, 124 Mas S 503; Humphreys v Reed, 6 Whart.

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Sullivan v Park, 33 Post Date: Fri, 25 Jul 2008 20:32:33 +0000
(Pa) 434; Shenk v Philadelphia Steam Propeller Co, 60 Pa St 109; Stephenson v Hart, 4 Bin g 476; Youl z/ Harbottle, Peake's N p 49; Baltimore, etc, RCo v O'Donnell, 49 Ohio St 489; Illinois Cent RCo v Parks, 54 111 294; In- dianapolis, etc, RCo v Herdon, 81 111 143; Devereux v Barclay, 2B Ai d 702 An action of trover may be main- tained against a carrier who delivers goods to a third person by mistak e Illinois Cent RCo v Parks, 54 111 294 It is the duty of the carrier to de- liver goods to the consignee at the place of destination named in the bill of lading, and for a wrongful delivery it is liable in an action of troveRSt Louis, etc, RCo v Rose, 20 111 App 670 2 Rooke v Midland RCo, 14 Eng L E Q 175; Richardson v Rich, 104 Mas S 156; Adams v Clark, 9 Cus H (Mas S) 215; Packard v Get- man, 6 Co W ( N Y) 757; Powell v Myers, 26 Wen d ( N Y) 591; Louis- ville, etc, RCo v Lawson, 88 Ky 496; Northern Trans P Co v Sellick, 52 111 249; Bird v Georgia RCo, 72 Ga 655, 27 A M Eng RCa S 39; Hunt v Haskell, 24 Me 339; Long v Mobile, etc, RCo, 51 Ala 512; Erie Dispatch v Johnson, 87 Tenn 490; Lewis v St Paul, etc, RCo, 20 Min N 260; Hurt v St Paul, etc, RCo, 39 Min N 485; Marsh v Union Pa C RCo, 9 Fed Rep 873 Trover lies by the owner against a carrier for the conversion of a chattel, where the latter refuses to de- liver it, on demand, until a larger sum is paid for transportation than had been agreed upo N Northern Trans P Co v Sellick, 52 111 249 Trover lies at the instance of a consignee, who is willing to pay freight on having goods delivered to him, against a carrier who refuses to deliver the goods unless an amount, in addition to the freight to which he is entitled, is paid hi M Adams v Clark, 9 Cus H (Mas S) 215 Sale of Goods for Freight. Trover lies where the carrier has sold goods for freight. Sullivan v Park, 33 Me 438; Briggs v Boston, etc, RCo, 6 Allen (Mas S) 246 3 Ostrander v Brown, 15 John S ( N Y) 39, 8 A M De C 211, in which it was held that it is not a good delivery of goods by a common carrier, for him to leave the articles on the dock, not in the presence or with the knowledge of the consignee, and that trover would lie against the carrier for the goods not actually delivere d 4 Porter v Rose, 12 John S ( N Y) 209 5 Long v Mobile, etc, RCo, 51 Ala 512 6 Dyer v Grand Trunk RCo, 42 Vt 441; Cutting v Grand Trunk RCo, 13 Allen (Mas S) 381; Boston, etc, RCo v Brown, 15 Gray (Mas S) 223 See also Fitch v Newberry, i Doug L (Mich) I 2 Partie S A person holding Inspector tickets of wheat, whether he has the full title or only a special property therein, may maintain an action for conversion against a carrier on failure to deliver merchandise on proper deman d 1 3 Allegations Seasonable Time for Deliver Y In an action for refusal to deliver, it should be alleged that a reasonable time for trans- portation had elapsed since delivery to the carrier for transporta- tion, or that the goods had been transported before demand for them was mad e 2 Payment or Tender of Charge S It must also be alleged that defend- ant's reasonable rates and charges have been paid or tendered, or that a reason exists for not having done So 3 Special Damage S If a recovery is sought for special damages aris- ing out of exceptional circumstances, the declaration should allege that the defendant contracted to become responsible for special damages growing out of such circumstances, 4 or, at least, that the defendant had knowledge thereof But in the absence of these averments, special damages may be shown if the declaration alleges that the breach of duty was of a wanton, wilful, or fraudu- lent characTer 5 Allegations in statutory Actio N Where the action is to recover a penalty for refusal to deliver, the pleader must bring himself strictly within the requirements of the statut e 6 Where goods were damaged in transportation, by the negligence of the carrier, to a greater amount than was due the carrier for freight, and the carrier refused to deliver them till the freight was paid, the court held that, the carrier's lien being only co- extensive with the right to claim and recover freight, the detention was un- lawful, and the owner might maintain replevin therefoRDyer v Grand Trunk RCo, 42 Vt 441 1 Lewis v St Paul, etc, RCo, 20 Min N 260; Hurt v St Paul, etc, RCo, 39 Min N 485 2 Jeffersonville, etc, RCo v Gent, 35 Ind 39, in which the court says: " There is nothing in the plead- ing to preclude the idea that the de- mand at Indianapolis was made the next hour or the next day after the delivery at Columbus, before the flour had been or could have been trans- ported to Indianapolis in a reason- able time after its delivery in due course of railroad transportation; and if the flour had not been received at Indianapolis when the demand was made, for the reason that a reason- able time for its transportation had not elapsed, the refusal of the defend- ant's agents at Indianapolis to deliver it fixed no liability upon the com- pan Y" 3 Jeffersonville, etc, RCo v Gent, 35 Ind 39 4 Silver v Kent, 60 Mis S 124 See also British Columbia, etc, Spar, etc, Co v Nettleship, L R, 3 C p 499; Landsberger v Magnetic Te L Co, 32 Barb ( N Y) 530; Home v Mid- land RCo, L R, 7 C p 583; El- binger Actien Gesellschaft, etc, v Armstrong, L R, 9 QB 473; Simp- son v London, etc, RCo, i QB Div 274 5 Silver v Kent, 60 Mis S 124, in which it was held that if the declara- tion alleges that defendant " wanton- ly, and in gross neglect of his duty as a common carrier, and in reckless dis- regard of the plaintiff's rights, wil- fully refused to deliver the goods," and the proof sustains the averment, the jury may give a verdict not only for compensatory damages but also for exemplary damage S 6 Schloss v Atchison, etc, RCo, 85 Tex 601 See article PKNA ITIE S Insufficient Petitions Illustrate d A petition, in an action to recover a penalty for a wrongful refusal to V I ACTIONS BASED ON ILLEGAL CHARGES 1 Actions to Recover Excess A GENERALL Y Irrespective of any legislation on the subject a party charged excessive rates for freight lias always been entitled to sue for the excess, provided he has done nothing which can be construed to be an acquiescence in the rates wrongfully exacte d In addition to this there are statutes, both of the United States and of individual states, expressly affirming this right, 1 or authorizing an action to recover a penalt Y 2 b NATURE AND FORM OF ACTION Assumpsit.

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4 deliver height, alleged Post Date: Fri, 25 Jul 2008 20:17:36 +0000
At common law, where the carrier makes illegal charges for carriage of goods con- signed, the excess may be recovered back in an action for money had and receive d 3 Action of Tort. And it has been held that the plaintiff is not limited to this form of action, but may sue in tort. 4 deliver height, alleged a shipment over defendant's line and stated the amount of the freight charge S It was not alleged that the amount of the charges was shown by the bill of lading, but it was alleged that after the goods arrived the defendant's agent notified the plaintiff of their ar- rival and of the amount of the freight charges due, as shown by the expense account.

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The prayer of the complaint Post Date: Fri, 25 Jul 2008 20:01:12 +0000
Held, not to state a cause of action, within the meaning of the statute making it unlawful for a car- rier to demand a greater sum for freight than is specified in the bill of lading, requiring the carrier to deliver freight on payment of the charges due as shown by the bill of lading, and providing a penalty for its refusal so to d O Schloss v Atchi- son, etc, RCo, 85 Tex 601 A petition, in an action to r over for refusal to deliver freight, A.eged a delivery of goods to a certain car- rier and the execution by it of a through bill of lading for the carriage of the goods to a point on defendant's rout e It was also alleged that said carrier and defendant, at the time the bill of lading was executed, were car- riers for hire, and that by virtue of the contract said carrier and defend- ant agreed to carry the consignment from Tells City, Ind, to Orange, Tex Held, that the petition was bad, as not showing a partnership or that the bill of lading was executed by de- fendant or by defendant's authorit Y Miller v Texas, etc, RCo, 83 Tex 518 1 See Interstate Commerce Act and various state statute S 2 See 3, Actions to Recover Penalty, infr A 3 Parker v Great Western RCo, 7 M g 253, 49 E C L 253, 8 JuR194, 3 Rail W Ca S 563; Garton v Bristol, etc, RCo, iB S 112, 101 E C L 112; Great Western RCo v Sutton, L R, 4 H L Ca S 226, L J Exc H 177; Evershed v London, etc, RCo, 2 QB Div 254, 3 App Ca S 1029; Heiserman v Burlington, etc, RCo, 63 Iowa 732, 16 A M Eng RCa S 46; Fuller v Chicago, etc, RCo, 31 Iowa 187; Mobile, etc, RCo v Steiner, 61 Ala 559; Fisher v New York Cent, etc, RCo, 46 N Y 644; Smith v Chicago, etc, RCo, 43 Wi S 686; Graham v Chicago, etc, RCo, 53 Wi S 473 Compare Parker v Great Western RCo, 15 JuR109 4 Smith v Chicago, etc, RCo, 49 Wi S 443, i A M Eng RCa S 303; Graham v Chicago, etc, RCo, 49 Wi S 532 In Smith v Chicago, etc, RCo, 49 Wi S 443, i A M Eng RCa S 303, whichwas an action originallybrought to recover, for an exaction of excessive charges for the carriage of goods, the statutory penaltyof three times the ex- cess, it was determined that such an action would not lie, by reason of a re- peal of the statute (43 Wi S 686). The prayer of the complaint was then changed so as to demand only the il- legal exces S Held, that, as the ex- cessive charges are alleged to have been made "wrongfully and fraudu- lently," the action may still be re- garded as one in tort, and the amend- ment is allowabl e See also Crew v Suit in Equit Y A bill in equity, however, cannot be maintained to recover overcharges, as the liability is a purely legal on e 1 C PARTIE S One with whom a contract of carriage is made, and who is described therein as consignor, consignee, and sole owner, may maintain an action for overcharge S 3 d ALLEGATIONS Generall Y In an action to recover excessive freight charges, where the complaint alleges the amount of excess charged and received by the defendant, but it does not appear by affirmative allegation that the plaintiffs paid it, the inference will be indulged that it was paid, as they were the shippers; and the complaint will be good as against demurreR3 Allegations Governed by Statut e In actions under statutes to recover for overcharges, the declaration should state every fact necessary to constitute a cause of action within the statut e 4 Thus, under the Georgia statute the declaration which fails to allege either that no rates had been fixed or that the charges were beyond the rates so fixed, is insufficient.

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7 2 Actions to Recover Post Date: Fri, 25 Jul 2008 19:44:43 +0000
5 So, under the Interstate Commerce Act, no recovery can be had on .1 declaration drawn on the theory that no specific rate was at the time agreed on, and that in view of this the rate actually exacted, being unreasonable, was contrary to the element of the contract read into it by implication of law, unless the declaration states that no rates were published as required by la W 6 And if the complaint is for illegal discrimina- tion in rates, the mere averment that no rates were published will not make the complaint good if it is otherwise insufficient. 7 2 Actions to Recover Penalty A GENERALL Y As before stated, there are statutes in force in many jurisdictions which pro- vide that carriers should be liable to a penalty for making charges exceeding a rate fixed by statute, or for unlawful discrimination in rate S In some jurisdictions the common-law right of ac- tion is superseded by the remedies which the statutes provide, 1 while in others the statutory remedy is considered merely cum- ulativ e 2 b NATURE AND FORM OF ACTIO N There is a conflict of authority as to the nature of an action to recover a penalty for illegal charge S By some courts it is considered that a penalty creates no contractual liability, and that the action is necessarily one of tort.

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The implied original contract Post Date: Fri, 25 Jul 2008 19:31:26 +0000
3 But some courts consider the action one of contract, 4 1 Winsor Coal Co v Chicago, etc, RCo, 52 Fed Rep 716; Young v Kansas City, etc, RCo, 33 Mo App 509; Streeter v Chicago, etc, RCo, 40 Wi S 294 2 Murray v Gulf, C, etc, RCo, 63 Tex 407, 22 A M Eng RCa S 464; Fuller v Chicago, etc, RCo, 31 Iowa 187; Heiserman v Burling- ton, etc, RCo, 63 Iowa 732; Gulf, C, etc, RCo v Lamkin 3 Tex App Civ Ca S, 80 The Iowa Act of 1862, 2, C 169, Laws of the Ninth General As- sembly, making railroad companies liable to a penalty for violations of its provisions and for overcharging, was not intended to deprive a person from whom overcharges were collected from recovering the amount paid in ex- cess of the rates fixe d He may, in an action against the company, re- cover the amount wrongfully collected and also the penalty provided by the a Ct Fuller v Chicago, etc, RCo, 31 Iowa 187 3 Heiserman v Burlington, etc, RCo, 63 Iowa 736, 16 A M Eng RCa S 46; McCoun v New York Cent, etc, RCo, 50 N Y 176; Gra- ham v Chicago, etc, p RCo, 53 Wi S 473; International, etc, RCo v Prichard, I Tex App Civ Ca S, 427 See also Hart v Baltimore, etc, RCo, 6 W Va 336 "The right to recover a penalty given by statute does not rest upon contra Ct Its foundation is some un- lawful act done by the party who is subjected to the same, and not an ex- press or implied promise that he will pay the penalty because he has done the wrongful a Ct" Graham v Chi- cago, etc, RCo, 53 Wi S 473 4 Katzenstein v Raleigh, etc, RCo, 84 N Car 688, 6 A M Eng RCa S 464; Wilmington v Davis, 63 N CaR582; Edenton v Wool, 65 N Car 379 See also St Louis, etc, RCo v Hill, ii 111 App 248; Chicago, etc, RCo v People, 77 111 444; Norfolk, etc, RCo v Pendleton, 88 Va 350; Norfolk, etc, RCo v Pendleton, 86 Va 1004 Keason for Rul e In support of this doctrine the court says : " The only explanation we have been able, in our researches, to meet with on this sub- ject is to be found in 3 Blackstone's Commentaries 160 That learned judge and commentator says: ' There are some contracts implied by la W Of this nature are, first, such as are neces- sarily implied by thf fundamental constitution of government, to which every man is a contracting part Y And thus it is that every person is bound and hath agreed to pay such particular sums of money as are charged on him by the sentence or assessed by the interpretation of the la W For it is a part of the original contract entered into by all mankind, who partake the benefit of society, to submit in all points to the municipal constitutions and local ordinances of that state of which each individual is a membeRWhatever, therefore, the law orders one to pay, that becomes instantly a debt which he hath before- hand contracted to discharg e" Kat- zenstein v Raleigh, etc, RCo, 84 N Car 688 Reason against Eul e In McCoun v New York Cent, etc, RCo, 50 N Y 176, the court said: The action " is claimed to arise on contract, upon the principle stated in 3 B L Co M 161, whereby a forfeiture imposed by the by-laws of a corporation upon any that belong to the body immediately creates a debt, for which an action of debt will lie by the party injure d This principle is declared by Black- stone to be ' an implied original con- tract to submit to the rule of the com- and approve of either assumpsit * or debt to recover the penalt Y 2 C DECLARATION, PETITION, OR COMPLAINT Allegations Governed by Statut e In these actions the allegations are governed largely by the statutes under which the actions are brought, and the pleader must state such facts as will bring him within the terms of the statute relied o N 3 If the pleading conforms to the statute under which it is drawn it will be sufficient. 4 Excess over Legal Bate S If the penalty sought to be recovered is based on the ground of overcharge, the declaration, under some statutes, should allege that the rates charged were in excess of the maximum rates fixed by law or by the railroad commissioner S 5 munity whereof we are member S' He then adds that the same reason may, with equal justice, be applied to all penal statute S This principle, if carried out by the same reasoning, \, ould abolish all actions of tort. The implied original contract to obey all statutes, by the same principle and the same reasoning, extends to all laws, whether statutory or common la W It is surely not confined to the obeying of all statute law simpl Y Thus assumpsit, if not debt, would lie for an assault and battery, or for arson, etc" 1 St Louis, etc, RCo v Hill, n 111 App 248 2 Chicago, etc, RCo v People, 77 111 444; Norfolk, etc, RCo v Pendleton, 88 Va 350; Norfolk, etc, RCo v Pendleton, 86 Va 1004 3 Murray v Gulf, etc, RCo, 63 Tex 407, 22 A M Eng RCa S 464; Kankakee Coal Co v Illinois Cent RCo, 17 111 App 614 " It is not enough that the defend- ants may have a hint of the statutes under which they are sued, nor that they be put upon inquiry in relation to them; they are entitled to a dis- tinct and clear statement of the statutes which they are charged to have violated, and to be directly in- formed that it is for the violation of those statutes that the penalties are claime d" Crawford v New Jersey, R, etc, Co, 28 N J L 479 A petition under Mo Rev Stat, C 21, art.

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A complaint against a railroad Post Date: Fri, 25 Jul 2008 19:17:43 +0000
3, alleging that plain- tiff shipped two car loads of saw-logs over defendant's road, a distance of over twenty-five miles and under fifty, for which the legal rate of freight was $28, but that defendant charged an ex- cess over said rate of $320, which plaintiff paid, and asking judgment for that amount, is sufficient. Burk- holder v Union Trust Co, 82 Mo 572, 23 A M Eng RCa S 656 Amendment. A complaint against a railroad company for tlie statutory penalty for charging and receiving for the carriage of freight a greater sum than was allowed by statute, may be amended after the repeal of the statute so as to go merely for the amount wrongfully taken in excess of the statutory rate S Graham v Chi- cago, etc, RCo, 49 Wi S 532; Smith v Chicago, etc, RCo, 49 Wi S 443, i A M Eng RCa S 303 Varianc e In an action to recover a penalty for a freight charge in excess of the rates fixed by the railroad com- missioners, no recovery can be had on proof of charges in excess of rates fixed by statut e Scammon v Kansas City, etc, RCo, 41 Mo App 194 4 Norfolk, etc, RCo v Pendle- ton, 86 Va 1004; Norfolk, etc, RCo v Pendleton, 88 Va 350; Young v Kansas City, etc, RCo, 33 Mo App 509 5 Under a statute which provides that carriers shall make out a schedule of rates not in excess of the maximum rates established by law, file them with the railroad commis- sioners, and post them in their depots, and making them liable to a penalty for a violation thereof, a petition, in an action to recover a penalty for charging unreasonable rates on coal, is fatally defective if it fails to allege that the rates charged were in excess of those fixed by defendant, filed with the commissioners, and posted in defendant's depots, or that the charges were in excess of the maxi- mum rate fixed by the commissioners Avoiding Conditions in Bill of Ladin g And where the bill of lading; contains stipulations which deprive it of its conclusiveness as to the sum to be paid for freight, as that the weight is subject to- correction, it should be alleged that the freight mentioned in the bill of lading was estimated upon the actual weight, to negative the correctness of the demand for freight in excess of that named in the bill of ladin g 1 Unlawful Discriminatio N If the action is to recover a penalty for unjust discrimination in rates, the declaration must show a dis- crimination in defendant's rates, and that such discrimination was unjust ; a as that plaintiff was charged a greater rate of freight than was charged another for a like quantity and quality of mer- chandise, 3 or that in respect to such merchandise there was a higher charge for a lesser than for a greater distanc e 4 Reasonable Charg e It is not necessary to allege what would have been a reasonable charge, as that is a mere matter of evidenc e 5 or by the statut e McGrew v Mis- souri Pac RCo, 114 Mo 210 It is not sufficient to charge a rail- way company under the statute with the penalty for charging unreasonable rates, on the ground that they were simply unreasonable and extortion- ate, without reference to the schedule of rates fixed by the railroad commis- sioners; and a declaration in a suit to recover the penalty prescribed by statute is fatally defective which fails to aver that a schedule of rates had been established, as provided for in the statute, and that the defendant had charged in excess of those rate S Chicago, etc, RCo v People, 77 111 1 Gulf, C, etc, RCo v Loonie, 84 Tex 259; Sabine, etc, RCo v Cruse, 83 Tex 460 2 St Louis, etc, RCo v Hill, n 111 App 248 A Bill to Enjoin Illegal Discrimination in charges should state facts show- ing wherein the illegal discrimination consist S An averment that com- plainant was made to pay certain charges is not sufficient where it does not show that there were other ship- pers, and that they were charged less rates than complainant.

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1 b PARTIES Plaintiffs Post Date: Fri, 25 Jul 2008 19:04:56 +0000
De Bary Baya Merchants' Line v Jacksonville, etc, RCo, 40 Fed Rep 392 3 Chicago, etc, RCo v People, 77 111 443; New York, etc, RCo v Gallaher, 79 Tex 685 Sufficient Allegation of Like Quantity and Qualit Y A petition alleging that defendant had charged plaintiff twelve and a half cents per hundred pounds freight for a car load of lumber from Houston to Wharton, Tex, while it charged one McCoy eight cents per hundred pounds for a car load of lum- ber at or about the same time, suffi- ciently showed that plaintiff's ship- ment was similar in quantity and quality to that of McCo Y New York, etc, RCo v Gallaher, 79 Tex 685 A description of the respective freights merely as one car load of ponies and one car load of horses, does not show them to be "like quan- tities of freight of the same clas S" Chicago, etc, RCo v People, 77 111 A complaint, in an action to recover for discrimination, which alleges that the services rendered to the plaintiffs and those rendered to other shippers were the same, and were rendered upon like conditions and under simi- lar circumstances, is bad for failure to state what the conditions and cir- cumstances of the shipments wer e Langdon v New York, etc, RCo (Supreme Ct), 15 N Y Supp 255 Iowa Allegation of Like Service and Condition S To authorize a recovery under the Iowa statute for unlawful discrimination, it should appear from the complaint that the discrimination was made for a like service and under like conditions in all material respect S Paxon v Illinois Cent RCo, 56 Iowa 427 4 Chicago, etc, RCo v People, 77 111 443 5 Goodridge v Union Pac RCo, 35 Fed Rep 35 Several Acts of Discriminatio N Where a recovery is sought for several acts of discrimination, it is not necessary to state each act of discrimination as a separate cause of actio N 1 d ANSWERAn answer to an action to recover a statutory penalty for unjust discrimination in another shipper's favor, alleg- ing a contract for rebate if such shipper would furnish a certain amount of goods for shipment, but which does not allege that such amount was ever furnished or that the shipper ever became entitled to the rebate, presents no defens e* 3 Mandamus or Injunctio N Mandamus cannot be employed as a remedy for illegal freight charges if another remedy exist S 3 If the remedy by suit for damages is ineffectual, an injunction will li e 4 1 Langdon v New York, etc, RCo (Supreme Ct), 15 N Y Supp 255, in which it is held that if defend- ant desires to know the precise time and circumstances of the alleged dis- crimination he should move for a bill of particular S 2 Union Pac RCo v Goodridge, 149 U S 680, affirming 37 Fed Rep 182; Union Pac RCo v Taggart, 149 U S 698 So an answer to an action to re- cover a penalty for overcharge, which sets up mistake as to the distance for which transportation is charged, is insufficient. Missouri Pac RCo v Smith ( Ark, 1895), 29 S W Rep 752 3 State v Mobile, etc, RCo, 59 Ala 321 Under Interstate Commerce A Ct The provisions of the Interstate Com- merce Act give the court discretion- ary power to grant mandamus in a case of unjust discrimination, when any question of fact as to the proper compensation is raised by the plead- ing, notwithstanding such question of fact is undetermined; but it does not authorize the court to grant man- damus if no case of unjust discrimi- nation is shown to exiSt U S v Delaware, etc, RCo, 40 Fed Rep 101, 40 A M Eng RCa S 36 4 Scofield v Lake Shore, etc, RCo, 43 Ohio St 571, 23 A M Eng RCa S 612; McDuffee v Portland, etc, RCo, 52 N H 430; Sandford v Catawiss Aetc, RCo, 24 Pa St 378; Chicago, etc, RCo v People, 67 111 23; Macfarlane v North British RCo, 4 R C T Ca S 269; De Menacho v Ward, 23 Blatchf (U S) 502, 27 Fed Rep 529 Illustration S Where it appeared that plaintiffs' business was such as to make them frequent shippers, and that a series of shipments was neces- sary for conducting their business, and that a remedy sought by ac- tions at law would lead to a mul- tiplicity of suits, the court will inter- vene, by injunction, to restrain the wrongful discrimination; and it is not * a prerequisite that plaintiffs should have first established their rights by an action at la W Scofield v Lake Shore, etc, RCo, 43 Ohio St 571, 23 A M Eng RCa S 612 Upon a complaint by a trader that a railway had made excessive charges for the conveyance of his traffic and unduly preferred the traffic of another, defendant admitted that it had done so, but contended that as such causes of complaint had been removed before the application was filed, it was not necessary that an injunction should issu e Held, that the applicant was entitled to be fortified for the future with such security as the railway commissioners had power to give him, and that injunction must issu e Macfarlane v North British RCo, 4 R C T Ca S 269 Injunctio N The proprietor of a steamship line between New York and Cuba charged the plaintiff a higher rate of freight for transport- ing goods than he charged other ship- pers, because the plaintiff would not agree to employ that line exclusivel Y It was held that the discrimination was unlawful, and that the proper remedy was injunction to prevent such discriminatio N De Menacho v, Ward, 23 Blatchf (U S) 502 27 Fed Rep 529 VI I ACTIONS BY CAEEIEE FOE NONPAYMENT OF FEEIGHT 1 Ac- tion to Recover Freight A FORM OF ACTIO N An action at law may be maintained by the carrier to recover his charges for trans- portation ; and the usual form of action at common law is as- sumpsit. 1 b PARTIES Plaintiffs Land Carrier S Where the carrier is a carrier by land the rules as to proper parties plaintiff conform to the substantive rights of the carrier to recover freight.

Autor of the post: Undefined

3 Such provision is deemed Post Date: Fri, 25 Jul 2008 18:51:24 +0000
Water Carrier S The master of a vessel may sue in his own name to recover freight, though he is not the owner; 2 and whether he has signed the bill of lading 3 or not, 4 his rights and powers bring him within that class of persons who, having a special interest in the subject-matter or thing, may always sue for it in their own na Me 5 So suit is properly brought in the name of the master, where he is sailing the vessel on shares with the owner; 6 and at least one decision holds that in such case he alone can su e 7 Joinder of Owner S The several owners of vessels owned in shares, being partners in regard to its earnings, should join in an action to recover freight ; 8 and one of two or more joint owners cannot maintain such action alone, though he is also masTer 9 Defendant S As the question of the parties to be sued is almost solely one of substantive liability, an extended discussion thereof 1 See Gait v Archer, 7 Gratt ( Va) 307 ; Sayward v Stevens, 3 Gray (Mas S) 97; Manter v Holmes, 10 Met (Mas S) 402; Atkinson v Buckle, 3 BulSt 152; Ward v Felton, i East 507; Manchester, etc, RCo v Fisk, 33 N H 297; Robinson v Gushing, n Me 480; Clarkson v Edes, 4 Co W ( N Y) 470 Where a carrier contracts to deliver a crop of wheat at an agreed price per bushel, and a large proportion thereof is delivered in good order, but from the unavoidable effects of a storm a small portion is delivered in a damaged condition, and another small portion is lost, the carrier may re- cover, under the common indcbitatus count, the agreed price for the whole quantity so delivered or loSt Gait v Archer, 7 Gratt ( Va) 307 2 Kennedy v Eilau, 17 Abb Pr ( N Y C P I) 73, 26 How Pr ( N Y) 197; Clarkson v Edes, 4 Co W ( N Y) 470 3 See Ward v Felton, I East 507 4 Kennedy v Eilau, 17 Abb Pr ( N Y C P I) 73, 26 How Pr ( N Y) 197 5 Kennedy v Eilau, 17 Abb Pr ( N Y C P I) 73, 26 How Pr ( N Y) 197 In Shields v Davis, 6 Taunt 65, the objection was taken that the mas- ter averred in his declaration that the goods were carried in his vessel, and as the evidence showed that he was merely the master and not the'owner, that the variance was fata L The court said that the master had a special property in the ship because he had, necessarily, the control of it. 6 Clendaniel v Tuckerman, 17 Barb ( N Y) 184 7 Manter v Holmes, 10 Met (Mas S) 402, in which it appeared that the owners of a vessel had let her on shares, for a specified time, to the master, who was to victual and man heRThe court was of opinion that the freight was legally due the master, and that he alone could main- tain an action for it; that as he had taken the vessel on shares he was owner pro hac vic e 8 Merritt v Walsh, 32 N Y 685 Waiver of NonjoindeRUnder the New York Code the objection that there is a nonjoinder of parties plain- tiff must be taken by demurrer or an- swer, or it will be considered waive d Merritt v Walsh, 32 N Y 685 9 Robinson v Gushing, n Me would be out of place in this work, and only the most general principles will be state d The ConsignoROrdinarily the consignor is considered the party originally liable to pay freight, 1 and it makes no difference that he is not the owner, 2 or that the bill of lading provides that the consignee or his assigns shall pay freight. 3 Such provision is deemed to enure to the benefit, not of the consignor, but of the carrier alone, who has the option to require payment of freight before delivery of the consignment, or to waive the benefit of the provision by a delivery without payment and have resort to the consignor for payment.

Autor of the post: Undefined

Plaintiff should allege the undertaking Post Date: Fri, 25 Jul 2008 18:38:19 +0000
4 The Consigne e The consignee is presumptively the owner of the consignment, and he \sprimafacie liable for freight; and on accept- ance of the consignment he impliedly promises to pay the freight, unless ownership is proved to be in anotheR5 The fact that he is not named in the bill of lading will not exonerate him from lia- bility for freight if the consignment is intended for him and he accepts it. 6 C DECLARATION, PETITION, OR COMPLAINT. Plaintiff should allege the undertaking, the carriage in accordance therewith, the delivery after the transportation is complete, and the nonpay- ment of freight.

Autor of the post: Undefined

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