Davis v. Akron Feed & M. Co.

296 F. 675, 2 Ohio Law. Abs. 418

• Court: Court of Appeals for the Sixth Circuit
• Decided: March 6, 1924
• Docket: No. 3952
• Status: Published

Opinion

PER CURIAM.

Epitomized Opinion

This was an action by the Director General of Railroads agáinst The Akron Feed & Milling Company. In October, 1919, a.shipment of wheat originated at Isabel, Kans., and another shipment originated at Pretty Prairie in the same state. These two shipments of wheat were milled at Hutchinson, Kansas, and reshipped by a connecting- carrier of the Erie Railroad, under hill of lading dated Nov. 19, 1919, consigned to the order of The Larabee Flour Mills at Kansas City, Kans. It was thereafter l-econsigned to E. P. Mueller at Chicago and by Mueller was re-consigned to the Akron Feed & Milling Company, Akron, Ohio. The Akron Feed & Milling Company agreed to pay Mueller for this shipment $1050 f. o. b. cars at Akron. A bill,of lading was forwarded to an Akron bank. When the consignment reached Akron the Erie R. R. Company represented to The Akron Feed & Milling Company that all freight chargeable against this shipment up to the time of its arrival in Chicago had been paid. The scheduled rate from Chicago, including war tax, amounted to $38.64, which was paid by the Milling Company. This Company, relying upon the representations made by the Railroad Company that all freight had been paid to Chicago, paid for the goods. The Railroad Company later discovered that the freight charges amounting, with war tax, to $128.59 from Kansas City to Chicago had not been paid. The Director General thereupon brought this action against the Milling Company to recover that sum. For a defense to this action the Milling Company claimed that they had a right to rely upon the representations made by the Railroad Company. A jury was waived and the District Court entered a judgment for the defendant. The plaintiff prosecuted error. In sustaining the judgment of the lower court, the United States Circuit Court held:

1. Where wheat, which had been reconsigned several times, was sold to defendant f. o. b. ears in defendant’s city, and carrier erroneously told the defendant that the freight had been paid to a certain point, and defendant paid the freight charges from that point, and paid seller the balance of the purchase price after deducting the freight paid, held, that carrier is estopped from demanding further payment of freight by defendant.

Attorneys — Edward A. Foote, for Davis; Thompson, Hiñe & Flory, Cleveland, for Akron Co.

2. Representations or claims made by carrier as to the correct amount of the freight charges will not relieve a consignee from payment of the schedule rate, as a shipper or consignee has equal opportunity with a carrier to know the published rate.