Southern Railway Co. v. Lowe , 170 Ala. 598 ( 1910 )

MAYFIELD, J.

Appellant as a common carrier received and shipped for appellee two cars of blocks of wood. These blocks were from 6 to 15 inches in diameter, and 38 to 42 inches in length. They were blocks sawed from naturally round logs or poles, and were shipped to or consigned to the Attalla Cooperage Company. The blocks were shipped by the appellee to the cooperage company, and were sawed up by this company into boards, and afterwards made into barrel heads. They were sold by the appellee to the cooperage company by the cord, and not as by the foot, as per board or log measure. They were billed and shipped by the appellant as cordwood, and the freight thereon was paid in advance. On the arrival of the shipment the common carrier required the shipper to pay |23.84 in excess of the rates paid and stipulated in the bill of lading or affreightment (the usual bill of lading) signed by the parties to the shipment. This action is to recover back this excess, which was. required by the carrier to be paid before it would deliver the shipment.

The railroad, the common carrier, contends that the freight was wrongfully classified by its agent and the shipper as cordwood; that it should have been classified as logs and box material; that the freight rate was fixed by statute, by what is known as the “110 Commodity Act” (Laws 1907, p. 209) ; and that, when properly classified, the rates collected were only those fixed bv law, and were the only lawful rates authorized to be charged or collected for the shipment. This contention is not sound, for the following reasons: The act in question does not attempt to define cordwood, or logs, or box and barrel material. While it may fix rates as to each of these classes of goods, it does not attempt to define any one of them. The freight in question might be classed as logs or cordwood, and if the use to which it was subsequently to he applied was known and considered it is probable that it would he classed as box or barrel material; but judging by the blocks themselves, they could certainly be classed as cordwood as well as logs, and better than as box or barrel material. The mere fact that the consignee or some subsequent vendee might manufacture the blocks into barrels or boxes, or into-matches, or into lead pencils — they being shipped in their natural condition, except for being sawed into lengths of 38 to 42 inches — would not necessitate their being classified as barrel, box, match, or pencil material. Nor do we see any good reason why a block of wood 6 inches in diameter and 38 inches long, sawed from a round pole in its natural state, is of necessity a log, rather than a piece of cordwood. Cordwood is rather the more natural classification. The average person would certainly call it a piece of cordwood, rather than a sawlog or board material.

As the law did not classify or define this particular material, we know of no reason or law that would prevent the parties from agreeing on the classification. We cannot see that it was any more illegal to classify this shipment as cordwood than to classify it as sawlogs or as board material. It was of no concern to the shipper, or to the carrier, to what use it would be put by the consignee or manufacturer. The carrier, as well as the shipper, was bound by the classification and rates made; the rates being in accordance with the statute as to the classification agreed upon. The carrier had no right to reclassify,- nor to collect the excesive rates as a condition precedent to delivery; and tlie plaintiff was entitled to recover'back the excess.—Southern Express Co. v. Boullemet, 100 Ala. 275, 13 South. 941; Southern Railway Co. v. Anniston F. & M. Co., 135 Ala. 315, 33 South. 274; St. Louis & San Francisco v. Cashr Grain Co., 161 Ala. 332, 50 South. 81; Tallassee Co. v. Western Railway Co., 117 Ala. 520, 23 South. 139, 67 Am. St. Rep. 179.

The court rendered the only judgment that should have been rendered on the undisputed facts. The judgment- is affirmed.

Affirmed.

Dowdell, O. J., and Simpson and McClellan, JJ., concur.