Hays Cooperage Co. v. Louisville N. R. Co. , 18 Ala. App. 18 ( 1920 )

The appellee brought suit to recover freight under charges on 19 cars of softwood blocks or stave bolts, shipped over appellee's line of railroad from Trussville to Attalla, Ala. These shipments moved during the years 1913, 1914, and 1915, and were consigned to appellant, who paid the amount of freight thought by both appellant and appellee to be correct; that is, an amount based on the idea that Attalla was 70 miles from Trussville; it afterwards appearing that the distance was 76 miles. Under an agreed statement of facts, which the reporter will set out, the case was tried before the judge in the lower court, judgment being rendered for the appellee.

The pleas were the general issue, payment, and the statute of limitations of three years. Appellant's main contention is that the 19 cars taken together make the claim an open account.

In the case of Sheppard v. Wilkins, 1 Ala. 62, the court defines an open account as follows:

"An open account is one in which some term of the contract is not settled by the parties, whether the account consist of one item or many."

This definition has been uniformly followed by our courts down to the present time, and it is so clear that to attempt to give any other or further definition would but lead to confusion and doubt.

We take it that "some term of the contract is not settled by the parties," as used in this definition, presupposes of course, "some term of the contract" that the parties are capable of dealing with, or of leaving open or unsettled. And herein is the trouble with appellant's contention in this case. The rate in a case of shipment of freight of this kind was fixed by law; it was not a matter of contract between the parties. This much is practically admitted by appellant, who contends that the rate fixed, was 70 cents per cord on softwood blocks or stave bolts. This would be true but for the fact, that the 70 cent fixed rate only applied to distances under 70 miles, whereas there was an equally fixed rate, where the distance was over 70 miles, which afterwards appeared to be in this case the correct distance. It cannot be seriously contended that the matter of distance was left open to be afterwards determined. The rate was fixed on whatever the distance along appellee's lines was, and no matter if it was thought at the time of the payment of freight that it was under 70 miles, and settlement made accordingly, this in no wise changed the fact of the actual distance, even though, as stated above, it might afterwards turn out to be otherwise. This proposition is clearly dealt with in the case of Union Naval Stores Co. v Patterson, 179 Ala. 525, 60 So. 807, where our Supreme Court held that a contract for the sale of a quantity of rosin, and turpentine at a price to be fixed by the market quotations of the days of delivery is not an open account because nothing was left to be settled by the parties. The instant case is, to our minds, even stronger, because at the time of the delivery of the softwood to appellee for shipment there was a fixed rate on the same to Attalla, no question was asked about it, nothing was left open, nor indeed could be as to that, the same being fixed by law. Both parties settled on what was supposed to be the fixed rate, and the fact that it afterwards appeared that they made a mistake as applying the facts in the case would in no wise change the law, that is in the instant case the rate whatever it in fact was, certainly not to the extent of permitting the appellant when sued to say our mistake as to the distance, our mistake as to the law, if you please, left the matter open, unsettled, and by virtue of this, the appellee having waited for more than three years, is barred and precluded from maintaining this action.

No mistake of the law, that is of the law made, fixed rate, can be said to be that uncertainly, which would leave any settlement made thereby in a state of such unliquidation as would enable one of the parties when sued to claim such mistake as such an element of uncertainty, to the end that the statute of limitation of three years could be successfully pleaded as a bar to such suit.

The facts in this case cannot differentiate it from the case of Northern Ala. Ry. Co. v. Wilson Mercantile Co., 9 Ala. App. 269,63 So. 34, in which this court speaking through Judge Pelham expressly decides that a claim for freight is not an open account, and is not barred by the statute of limitations of three years. This language is used in that case:

"In this case the demand was based on a contract of shipment, and the amount payable as freight was a definite, certain,fixed [underscoring ours] sum — fixed by law. The qualifications which the law imposed determined the respective liabilities of the parties, and, the demand being ascertained and fixed by law, it is not an open account against which the statute of limitation of three years will run as a bar."

The reasoning in the case above cannot be brushed aside by saying that in the instant case more than one car is involved. Each car was shipped at a separate and distinct time, and the rate was as definitely fixed on 19 cars as on one. The plaintiff could have brought suit on each separate car, and would then have had 19 separate suits instead of one. Under the law it had the right to join these separate and distinct causes of action in one suit. In seeking to eliminate the evils, incident to permitting the carrier and shipper to make rates, or fix the classification, the law itself fixes these rates and classifications, and even though parties may have honestly thought that the shipment was under such a rate or came within such a classification, there was in fact but one rate, but one classification as a matter of law, and the fact that plaintiff had more than one rate, which it thought applied, in no sense changed the rate, or introduced an element making the account unsettled.

In the case of A.J. Poor v. Chicago, Burlington Quincy R. R. Co., 72 Interst. Com. R. 418, the Interstate Commerce Commission, through Harlan, Commissioner, said:

"Stability and equality of rates are more important to commercial interest than reduced rates. * * * While shippers rely largely upon rates quoted by freight agents and billing clerks, the law charges them with knowledge of the lawful rates, and they will not be heard before this commission to claim the benefit of a lower than the lawful rate, on the ground that some railroad clerk has made a mistake in quoting a lower rate for a particular shipment."

In the case of Emerson v. Central of Ga. Ry. Co., 196 Ala. 280,72 So. 120, L.R.A. 1916F, 120, Justice Thomas, speaking for the court, says that "mistake, inadvertence honest agreement, and good faith are alike unavailable," and furnish no defense to an action for the lawful rate, both shipper and carrier being bound by the rate on file with the Railway Commission, and they are powerless to contract with reference to any other rate. See, also, the following cases: Oden-Elliott Lumber Co. v. L. N. R. R. Co., 16 Ala. App. 495, 79 So. 400,401; L. N. R. R. v. McMullen, 5 Ala. App. 663, 59 So. 683; Hurt v. A., B. A. R. Co., 17 Ala. App. 241, 84 So. 631.

We are not unmindful that it is awfully hard for the appellant to have to pay the amount of this judgment, paying freight to the amount of double and treble the market value of the articles shipped at the time of shipment, and if we were to decide the case on sympathy it would not take us two minutes to write a judgment for appellant, but it is our duty to declare the law, and as we see it there is no escape from the conclusion reached by the trial judge. It may be stated, however, that the appellant had the right to make shipment over the Alabama Great Southern Railroad to Attalla, which was a competing line and a distance of 41 miles from Trussville, over which line there was a rate in keeping with the value of the commodity shipped, and while appellant as well as appellee, appear to have made an honest mistake as to the rate, yet appellant had its choice of routes, and there is nothing left for this court but to affirm the judgment of the trial court.

Affirmed.