L. R. & F. S. Ry. v. Daniels , 49 Ark. 352 ( 1887 )

Cockkill, C. J.

This is an appeal by the railway company from a judgment recovered by J. B. Daniels & Co. for an overpayment of freight they had been compelled to make. The action was based upon two bills of lading issued by the appellant, and was tried on the following agreed statement of facts,, viz.:

“ On the 3d and 5th of October, 1885, J. B. Daniels & Co. delivered to the L. R. & Ft. S. Ry. Co. 100 bales of cotton to be shipped from Fort Smith, Ark., to Waterville, Me. The shipments were made under the two bills of lading exhibited. The cotton was delivered at its destination. The freight due on it, at the rate specified in the bill of lading, viz., $1.07 per 100 pounds, was $544.50. The amount of freight charged and which appellees paid at destination was $690.76, making an overcharge of $146.26 above the rate agreed on. The amount of overcharge on the L. R. & Ft. S. Railway was $14.95; the remaining overcharges of $131.31 being by and upon other connecting carriers by which said cotton was transported. The L. R. & Ft. S. Railway duly tendered and paid into court the $14.95, overcharge upon its line, April 28, 1886, before entering into the trial of this suit.”

The judgment was for the full amount of the overcharge. The company contends that its liability is not greater than its proportion of the excess over the stipulated price — that is, $14.95.

The solution of the question is to be determined by the terms of the contracts between the parties, and these are found in the bills of lading. The bills of lading are identical in form and contain two provisions pertinent to our inquiry, as follows, viz.:

“It is understood that railroads connecting with this line recognize this bill of lading, and will settle freight bill accordingly;” and, “Rates and delivery guaranteed only from Fort Smith to Waterville, Me. Cotton $1.07 per 100 lbs.”

By the execution of a contract of carriage to a point beyond its line, the contracting company held itself out to the shipper as authorized to enter into-a binding contract on behalf of the connecting carriers in the line of transportation. It has stiptdated that connecting carriers will recognize the contracts of carriage made with the appellees, and will settle the freight bills according to their terms, and mox-eover follows this with an express guax'anty that it will be done. The guaranty is unqualified. When one thus guarantees the acts of' others, his liability is commensurate with that of his principals, and when they are in default he becomes at once responsible for their dereliction. Killian v. Ashley, 24 Ark., 511, 517 Brandt on Sur. & Guaranty, sec. 171.

The provisions of the contracts stipulating that the appellant shall not be held liable for the loss of or damage to the cotton after it has left the line of its road, have no relation to that part of the .contract which fixes and guarantees the rate of carriage, and the cases cited by the appellant’s counsel, exonei-ating carriers from liability where the loss occurred after delivery to the connecting cax'rier, have no application. The appellant, by positive agreement, has bound itself to this: That not more than $1.07 per 100 pounds should be collected of the appellees for transpoi'ting the cotton over its own and connecting lines to its destination. It must stand to its agreement and refund the excess collected.

Let the judgment be affirmed.