McGee v. Chicago, Rock Island & Pacific Railway Co. , 71 Mo. App. 310 ( 1897 )

Gtill, J.

This is an action for damages growing out of an alleged conversion of five car loads of walnut logs which the plaintiff shipped over defendant’s road from Platte City to Kansas City. Before the shipment, it seems that plaintiff had an agreement with defendant’s division freight agent that the freight charges should be five cents per hundred, but when the bills of lading Were written up by the local agent at Platte City the blanks were filled so that the same read that “this company guarantees that the rate of freight for the transportation from the place of shipment to Kansas City shall not exceed five cents per hundred and ‡2.00 demurrage,” etc. Shortly after the ears arrived at Kansas City plaintiff tendered the freight charges, computed at the rate of five cents per hundred, and demanded possession of the logs; but the defendant’s agent, while conceding the freight charges to be as tendered, yet exacted the further charge of $2 on each car for demurrage — the same being claimed by reason of an alleged unreasonable-delay by the plaintiff in loading the cars at Platte City. Defendant refused to deliver the logs unless this demurrage charge was also paid, which plaintiff declined to do. Defendant thereupon stored the logs with a warehouseman where they were sold for charges, and this suit followed. In the court below plaintiff recovered and defendant appealed.

Common carriers: const:action of contract: demanage: jm-y The whole case rests upon the question whether or not the defendant was entitled, under its contract with plaintiff, to the demurrage charge of $2 per car. For if this is so, then defendant had a ,. ,, ,, ,. . , . . , lien therefor on the property and might . r . ° retain the logs until it was paid. Defendant’s counsel contends that it was so entitled by the language of the bills of lading. The trial court did not so construe the terms thereof, and in our opinion the ruling was clearly correct. The language used did not evidence an agreement to pay a specific sum for demurrage. The bill of lading reads, that the company agreed that the charges “shall not exceed five cents per hundred and $2 demurrage,” this at most only fixed a maximum charge — an amount beyond which it should not go. It was an agreement or guaranty by the defendant that the demurrage charges would not exceed $2. Besides, when the entire bill of lading is read, it may be well contended, as plaintiff’s counsel suggest, that this demurrage so contracted for related alone to delay that might attend the unloading of the logs at Kansas City; for on the face of the instrument, in large - type, this clause appears: “All -car-load freight shall be subject to a minimum charge for trackage and rental of $1 per car for each 24 hours detention, or fractional part thereof, after the expiration of 48 hours from its arrival at destination.” There is no pretense that plaintiff unreasonably delayed in demanding the goods at their destination. But conceding the mention of demurrage to have intended to apply to delay in loading the ears at Platte City, yet as already said the contract did not fix $2 a ear as the price agreed. The most then that defendant could claim was an allowance for any such unreasonable delay at Platte City within the contract limit of $2. Harned v. Railway, 51 Mo. App. 482, 490. This question was properly submitted to the jury, and they found that plaintiff was not guilty of unreasonable delay in loading the cárs at Platte City.

So, from whatever standpoint the case is viewed, it is clear, on the facts found, that defendant wrongfully refused to deliver the logs when demanded, on tender of the freight charges. It thus appears that the judgment is for the right party, and will therefore be affirmed.

All concur.