Atchison, T. & S. F. Ry. Co. v. Tulsa Rig, Reel & Mfg. Co.

In the view taken of this case by this court, it will not be necessary to take up the specifications of error in their order as they are assigned and discussed by plaintiff and defendant in their briefs, but the decision of this case must rest upon the answer to the single question:

"Was plaintiff, under the record here presented, entitled to maintain this action for conversion against the defendant?"

The shipment in question was an interstate shipment, originating at Grigsby, Tex. In such case the various acts of Congress, known as the Interstate Commerce Act, are applicable. The bill of lading conformed to the requirements of sections 2 and 6, Act Aug. 29, 1916 (secs. 8604 aaaa and 8604cc, U.S. Comp. Stat. 1916), and was a straight, nonnegotiable bill, showing by memorandum upon its face that delivery was to be made to Tulsa Rig., Reel Manufacturing Company, at Tulsa, Okla. By section 42 of the same act this fixed the status of plaintiff as consignee.

Rules and regulations of the Interstate Commerce Commission and tariffs of the defendant filed with and approved by the commission, which are applicable to this case, were admitted in evidence. The trial court found therefrom that there was unpaid freight on this shipment amounting to $228.35, together with war tax thereon in the sum of $6.85, making a total of $236.20, and that defendant had a lien on this shipment for this amount until it was discharged by a tender made by plaintiff, which was refused by defendant.

The car was placed for unloading July 16, 1920, at the place designated by plaintiff in writing. On July 20, 1920, defendant was advised in writing by the company designated by plaintiff to do the unloading that it would not do so, and the car was turned back to defendant. Two days' demurrage had accumulated during this period and it became the duty of the defendant to collect this in addition to the freight and war tax, and it could not remit or rebate it without incurring the penalties and punishment prescribed by the Interstate Commerce Act. Gault Lumber Co. v. Atchison, T. S. F. Ry. Co., 37 Okla. 24, 130 P. 291; St. Louis, I. M. S. Ry. Co. v. McNabb, 63 Okla. 87, 162 P. 811; St. Louis S. F. Ry. Co. v. Pickens, 51 Okla. 455, 151 P. 1055; Louisville Nashville R. Co. v. Maxwell, 237 U.S. 94, L. R. A. 1915E, 665. In this latter case it is said:

"Under the Interstate Commerce Act, the rate of the carrier duly filed is the only lawful charge. Deviation from it is not permitted upon any pretext. Shippers and travelers are charged with notice of it, and they as well as the carrier must abide by it, unless it is found by the Commission to be unreasonable. S. Covington Cinn. R. Co. v. Covington et al., 235 U.S. 537, 35 Sup. Ct. 158, 59 L. Ed. 350. L. R. A. 1915F, 792; Ligon v. St. L. S. F. R. Co., 184 Mo. App. 187, 168 S.W. 647; St. L., I. M. S. R. Co. v. Spriggs, 113 Ark. 118, 167 S.W. 96."

Under these circumstances the tender was made which the trial court held sufficient to discharge the lien of defendant. It is true that after the car was turned back to defendant additional demurrage and other charges were claimed by defendant, but for the purpose of determining the sufficiency of the alleged tender to extinguish defendant's lien, it is only necessary at this time to consider the two days' demurrage which accrued before defendant was notified that the car would not be unloaded. Upon the question of tender the oral testimony of plaintiff, given by its secretary-treasurer, omitting the questions by counsel, was as follows:

"I talked to nearly everybody connected with them (defendant) over the 'phone, but the gentleman who came to our office, the man, as I remember it, was the cashier; I think Mr. Kitching — I think he is the one that came to the office. We offered to pay the freight if they would give us the lumber. They refused. We asked for the lumber and offered to pay the freight." C.-M. p. 45.

In addition to the above oral testimony the only other evidence of tender introduced by plaintiff was that contained in a letter from plaintiff to E.C. Kitching, district freight agent of defendant at Tulsa. This letter was plaintiff's "Exhibit 10," and only that portion of it relating to the alleged tender was admitted by the court. The sentence admitted in evidence reads as follows:

"We prefer to let you take the car for the charges and file our claim for the value of the car; however, if you can waive the demurrage accrued we will pay the freight and unload it." C.-M. pp. 53, 54.

Section 8604dd, U.S. Comp. Stat. 1916, so far as applicable here, provides:

"A carrier, in the absence of some lawful excuse, is bound to deliver goods upon a demand made either by the consignee in the bill for the goods or, if the bill is an order bill, by the holder thereof, if such demand is accompanied by —

"(a) An offer in good faith to satisfy the carrier's lawful lien upon the goods."

The testimony above set out falls far short of an unconditional tender or an "offer in good faith to satisfy the carrier's lawful lien." It amounts to no more than a proposition from plaintiff that if defendant will rebate it the amount of demurrage and taxes lawfully due, together with those in dispute, then plaintiff will pay the freight and unload the car. This, defendant could not lawfully do, and plaintiff is charged with knowledge of this law. Such an offer could not have been made in good faith with the intention or expectation that it should be accepted. A tender, in order to discharge a lien, must be of the full amount lawfully due and must be unconditional. Bly v. Pool, 60 Okla. 77, 159 P. 511; Isbell v. Walton Trust Co., 63 Okla. 182, 163 P. 716; Bell v. Riggs,34 Okla. 834, 127 P. 427; Goss v. Sorrell, 33 Okla. 586,127 P. 435; Porter v. Wold, 34 Okla. 253, 127 P. 432; Smith-Wogan Hardware Imp. Co. v. Bice, 34 Okla. 294,125 P. 456. Until such a tender was made and refused defendant's lien was not discharged. Being lawfully in possession of the car of lumber, it was entitled to retain possession until its lawful charges and lien were satisfied. No contention is made here that the proceedings of the defendant to enforce its lien by sale of the lumber under the provisions of section 4916, Comp. Stat. 1921 (Rev. Laws 1910, sec. 825), were not in all respects regular and in conformity with the provisions of the statute. Such being the case, there was no conversion by reason of such sale under the circumstances here shown.

"Conversion is any distinct act of dominion wrongfully exerted over another's personal property in denial of or inconsistent with his rights therein." Aylesbury Mercantile Co. v. Fitch, 22 Okla. 475, 99 P. 1089.

Following and approving this rule in this state are: Dodd-Lear Hardwood Lumber Co. v. Gyr, 44 Okla. 630,146 P. 16; Sivils v. Aldridge, 62 Okla. 89, 162 P. 198; Shelton v. Jones, 66 Okla. 83, 167 P. 458; First Nat. Bank of McCloud v. City Nat. Bank, 71 Okla. 52, 175 P. 253; Mayo v. Thede, 73 Oklahoma, 175 P. 348; Collinsville Nat. Bank v. Esau, 74 Oklahoma, 176 P. 514. McClintock v. Parish, 72 Okla.180 P. 689.

There being no wrongful conversion of the lumber at the time of sale, under the facts shown in this record, it follows that plaintiff was not entitled, to maintain this action. What plaintiff's remedy may be in reference to the demurrage and other charges made against this shipment subsequent to July 20, 1920, is not before this court for determination.

It follows, from what has been said, that the judgment of the trial court should be reversed, with directions to dismiss the action.

By the Court: It is so ordered.