Southern Railway Co. v. Wilcox & DeJarnette , 99 Va. 394 ( 1901 )

Buchanan, J.,

delivered the opinion of the court.

Wilcox and DeJarnette, the defendants in error, brought an action of assumpsit to recover from the Southern Railway Company, the plaintiff in error, the difference between an alleged agreed rate of freight and that actually charged and collected by the railway company for the transportation of certain.phosphate rock from Mount Pleasant, in the State of Tennessee, to Raleigh, in the State of ETnrth Carolina. The case has been twice tried. The judgment entered upon the first trial was reversed by this court upon a former writ of error, upon the ground that the declaration did not aver any consideration for the alleged promise of the railway company upon which the action was based, and the cause remanded, with leave to the plaintiffs to amend their declaration. Southern Ry. Co. v. Wilcox & DeJarnette, 98 Va. 222.

A demurrer to the declaration as amended, and to each count thereof, was overruled. This action of the court is assigned as error.

The objection made to the first, second, and fourth counts is, that neither avers that the phosphate rock was furnished by the plaintiffs for transportation within a reasonable time after the alleged contract for shipment was made.

The first and fourth counts aver in substance that the railway company offered to carry the rock upon certain terms, and that the plaintiffs accepted the offer. The second count avers that the railway company agreed to carry the rock at a named price, ■and that, in consideration thereof, the plaintiffs bound themselves to deliver it for transportation. Each of the three counts aver that the plaintiffs did furnish the rock as they had agreed to do, but the railway company charged and collected a greater freight per ton for carrying it than the contract price. ETo time was fixed by the alleged contract in which the rock was to be delivered for shipment. The plaintiffs had, therefore, a reasonable time within which to deliver it, and the averments in each of the counts that it was delivered for shipment as they had agreed to furnish it, must be construed as averring that it was furnished within a reasonable time after making the contract. The trial court so construed the counts, as is clear from the instructions given for the plaintiffs, and properly held them sufficient.

The objection made to the third count is, that whilst it avers an offer on the part of the railway company to transport the rock upon the terms named, and an acceptance of the offer on the part ■of the plaintiffs, it fails to aver that it was accepted before it ivas withdrawn. The averment that the offer was accepted necessarily implies that it had not been withdrawn, for there could be no acceptance of an offer that had been withdrawn.

The demurrer to the declaration, and to each count thereof, was properly overruled.

The rejection of two special pleas offered by the railway company, in which it was averred that the agreement sued on was in violation of the act of Congress commonly known as the Interstate Commerce Act, and was therefore illegal and void, is assigned as error.

The defence that the contract was illegal was clearly admissible under the general issue which had been pleaded. 4 Minor’s Inst. 773; 5 Rob. Pr., 255, &c.; Va. F. & M. Ins. Co. v. Buck & Newson, 88 Va. 517.

But if it had not been, the railway company was not injured by the rejection of the special pleas, as it was permitted to introduce its evidence upon that question under the general issue.

The admission in evidence of certain letters written by the plaintiffs to the defendant’s general agent at Norfolk, Va., dated, respectively, January 29, February 23, and April 25, 1898, is assigned as error.

The letter of January 29 th states that, from the tenor of the letters the plaintiffs were receiving from Raleigh, they were very much afraid that, unless the freight matter from Mount Plea-ant to Raleigh was adjusted satisfactorily very soon, much, trouble would result; that they did not like the tone of the last two communications they had received from the people to whom they had sold the phosphate rock on that subject, and urged the railway company "to settle the question without further delay. It further states that they enclosed a letter which showqd that the rate of freight from Mount Pleasant to Norfolk was still $3.30 per gross ton, that being the figure named therein about the time freight to Raleigh was given them. The letter of February 23d noted the reception or the agent’s letters of the 2d and 5th of that month, expressed surprise at the conclusion of the general freight agent of the railway company as stated in those letters, and the hope that upon the reconsideration of the matter he would take a different view of the question. The letter then gives a history of the matter in controversy, from the plaim tiffs’ standpoint, from the time of their application for special rates in the winter of 1891, down to the date of the letter, and insisted that the railway company ought to transport the whole 3,000 tons of phosphate rock at the alleged contract price. The letter of April 23d states that there is enclosed certain letters as requested by the defendant’s agent, mentioning briefly the contents of each, all of which refer to the freight rate to Norfolk. The letter discusses the justice and propriety of giving a lower rate to Norfolk than to Raleigh, when shipments made over the railway company’s road must pass the last named point to. reach Norfolk.

These letters were all written long after the contract in question is alleged to have been made and broken. They are no part of the res gestee. They are, for the most part, mere statements of the plaintiffs’ view of the differences between the parties, and the expression of plaintiffs’ desire to have them adjusted. The fact that a lower rate may have been charged by the railway company upon shipments of phosphate rock to Norfolk than was charged to Raleigh could not have any bearing upon the issues in this case, as the- plaintiffs’ demand was based, not upon an unreasonable or excessive charge, but upon a violation of their contract rights.

These letters ought not to have been admitted in evidence.

Neither were the contracts referred to in bills of exceptions, numbered twelve, thirteen, and seventeen, proper testimony. They were contracts tO' which the railway company was not a party, and of which it had no knowledge until after they were made. It may be that the plaintiffs, in making their contracts for the sale of phosphate rock, fixed their prices with reference to the rate of freight quoted to them by the railway company, but that fact does not tend to show that they had accepted the railway company’s offer, and bound themselves to furnish the rock for shipment. If they accepted the railway company’s offer, and bound themselves to furnish the rock for shipment, it is wholly immaterial to whom they sold the rock, or whether they sold it at all. Their making contracts for the sale of the rock to which the railway company was not a party, and of which it 'had no knowledge until after the contracts were made, would no more tend to show that they had accepted the offer than their not maldng contracts for its sale would tend to show that they had not accepted it.

Instructions numbered one and two are objected to upon the ground that there was no sufficient evidence upon which to base them.

These instructions in effect told the jury that if they believed that the railway company had offered to transport the phosphate rock at the price named, and that the plaintiffs had accepted the offer before a withdrawal of the same, then such acceptance constituted a contract; and if they further believed from the evidence that the plaintiffs furnished the rock for shipment within a reasonable time, under all the facts and circumstances of the case, then the defendant was bound to transport the rock at the agreed rate. There was evidence tending to prove the facts upon which these instructions were based. Whether it was sufficient or not to support a verdict could not, under our practice, be passed upon by the court when instructing the jury. Where a defendant is of opinion that the plaintiff has failed to prove his case, lie can demur to the evidence, and generally have the court-pass upon its sufficiency, or he can wait until the jury have found their verdict, and, if it he against him, have the court pass upon its sufficiency upon a motion to set aside the verdict. But if the case goes to the jury, and there is any evidence tending to prove a fact, it is proper for the court to give an instruction applicable to' it, if requested to do so, even though it is so slight as to be insufficient to support a verdict founded upon it. Jones v. Morris, 97 Va. 43, 49, and cases cited.

The objection to the other instruction, numbered three, given for the plaintiffs, is that the question of whether the phosphate rock 'had been delivered for shipment within a reasonable time after the making of the alleged contract, was a question for the court, and ought not to have been submitted to the jury, as was done by the instruction. There was considerable delay on the part of the plaintiffs in delivering the rock for transportation, but for this delay, if there was a valid contract for its shipment,, the defendant was to some extent responsible. It made overcharges on the earlier shipments, in adjusting which there was delay. Soon afterwards, the connecting carrier objecting to a continuance of the contract rate of freight, the rate was changed-All these things had more or less effect upon the delivery of the rock for shipment, and .the question whether it was delivered within a reasonable time was properly left to the jury, to be determined by them under the facts and circumstances in evidence,

From what has been said in reference to the last named instruction, it follows that the court rightly refused to give the railway company’s instruction numbered one, which was in conflict with it.

The railway company’s instructions numbered two- and three, which the court refused to give, told the jury, in effect, that, unless they believed from -the evidence that the plaintiffs had ■promised or agreed to furnish about three thousand tons of phosphate rock to be carried by the railway company at the freight rate named in its offer, the plaintiffs were not entitled to recover, and they must find for the defendant.

There was no consideration for the promise of the railway company to transport the rock, unless there was a promise on the part of the plaintiffs which hound them to furnish the rock for shipment. The fact that the plaintiffs made a contract with a third party for 'the sale and delivery of the rock, based upon the rate of freight named by the defendant, cannot affect the question. If the plaintiffs accepted and bound themselves to- furnish the rock for shipment, they were entitled to have it shipped at that rate, if the contract was in other respects valid. If they did not accept the offer, and were not bound to furnish it for shipment, they had no right to have it shipped at the rate named, if the regular rate was different, 'although they may have made contracts with third parties upon the basis of the named rate. The mutual obligations of the parties, the one to transport and the other to furnish for transportation, would have been a sufficient consideration for the promise of each, but if the plaintiffs did not accept the offer of the railway company, and were not bound to furnish the rock for shipment, the railway company’s offer or promise was a mere nude pact, the breach of which would furnish no ground of action (Southern Ry. Co. v. Wilcox & DeJarnette, supra; C. & G. E. R. R. Co. v. Dane, 43 N. Y. 240), and the jury should have been so instructed.

The refusal of the court to give instructions numbered four and five, asked for by the railway company, is also' assigned as error.

' These instructions were intended to raise the question of the legality of the contract sued on. One of the objections made to them is that there was no proper evidence bef ore the jury upon which to base them. In this contention the plaintiffs are clearly in error. Witnesses testified as to the established freight rate in force at the time the contract was alleged to have been made, and copies of the freight schedules on file in the office of the Interstate Commerce Commission were introduced, all of which tended to prove that the established rate was higher than the alleged contract rate. It is true that these copies were not attested in the manner provided by section 3343 of the Code, but a witness was introduced who testified that he had compared them with, and that they were exact copies of, the originals on file in the office of the Interstate Commerce Commission. The railway company had the right to- prove the freight rate on file in the office of the Interstate Commerce Commission by introducing in evidence examined copies. That is one of the usual methods óf proving records. The method provided by section 3343 of the Code is merely cumulative. The enactment of such statute rendering admissible a convenient species of evidence does not thereby deprive parties of the right to resort to anv other mode of proof allowable at common law, unless in the enactment of the statute it is clearly indicated (as it is not in this case), that it was the intention of the legislature to abrogate the old rule. 2 Taylor on Evidence, secs. 1546-7; 1 Greenleaf on Evidence, secs. 505-508.

The plaintiffs’ shipments were interstate freight, and must be governed by the Interstate Commerce Act. That statute prohibits an interstate carrier from contracting for or collecting a less rate of freight on interstate shipments than that specified in the schedules of rates in force at the time, and which are required to be printed and kept at all stations for tbe inspection and use of the public. The evidence, as before stated, tended to show that the alleged contract was in violation of that act. If it was, there could be no recovery upon it. The general rule of law being that a contract made in violation of law is void, and that when a plaintiff cannot establish his cause of action without relying upon an illegal contract, he cannot recover. Camp v. Bruce; 96 Va. 521; Hancock v. R. R. Co., 145 U. S. 416; 5 Rob. Pr. 409, etc. There is no reason why contracts in violation of the Interstate Commerce Act should not be governed by the general rule, and the' courts which have passed upon this question have generally so held. See F. & W. Ry. Co. v. Bundick (Ga.), 21 S. E. R. 995; S. R. R. Co. v. Harrison (Ala.), 24 S. E. 552; C. R. I. & P. R. R. Co. v. Hubbell, 38 Pac. Rep. 266; S. A. & A. R. R. Co. v. Clements, 49 S. W. 913; Wight v. U. S., 167 U. S. 513.

It is insisted that, although the contract in question may have been at the time it was made in violation of the Interstate Commerce Act, yet that the railway company and connecting carriers subsequently lowered their rate in the manner provided by the Interstate Commerce Act, so as to conform to the contract rate, and carried a portion of the phosphate rock at the lowered rate, thus ■ making valid the contract rate, but afterwards restored the rate to what it was when the contract was made, and charged and collected the restored rate on all subsequent shipments, in violation of the plaintiffs’ rights. The evidence tends to show that the railway company, after it learned that the plaintiffs had made a contract for the sale of the phosphate rock upon the faith of the rate quoted to them by mistake, did induce the connecting carriers to lower the rate so as to conform to the contract rate, and kept that rate in force from July 22, 1897, until the 16th of the following November, when the rate was advanced or restored to what it was when the alleged contract was made. The fact that the railway company and connecting carriers lowered their rate after the alleged contract was made, and transported a part of the phosphate rock at the lowered rate, did not make the contract sued on valid and binding on the railway company if it was invalid in its inception. The railway company was under no legal obligation to lower the rate, and if it and the connecting carriers lowered it when they were under no legal obligation to do so, they clearly had the right to advance it to the old rate (if that rate was reasonable, and that is not questioned in this case), in accordance with the provisions of the Interstate Commerce Act. There being no legal duty upon them to lower the rate, they violated no right of the plaintiffs in restoring it.

The plaintiffs’ right to recover depends upon the validity of their alleged contract. If that was made in violation of the Interstate Commerce Act, they cannot recover, and the jury ought to have been so instructed.

It will be unnecessary, if not improper, to consider the remaining 'assignment of error, viz., that the verdict was contrary to the evidence, as the judgment of the court will have to be reversed for the errors above mentioned, and the cause remanded for a new trial, in which the evidence may be different.

The judgment of the Court of Law and Chancery must be reversed, the verdict set 'aside, and the cause remanded for a new trial to be had not in conflict with the views expressed in this opinion.

Reversed.