Greason v. St. Louis, Iron Mountain & Southern Railway Co.

86 S.W. 722, 112 Mo. App. 116, 1905 Mo. App. LEXIS 105

• Court: Missouri Court of Appeals
• Decided: March 7, 1905
• Status: Published

Opinion

GOODE, J.

(after stating the facts). — It will be observed from the foregoing statement that the plaintiffs declared on a supposed agreement by the defendant contained in the letter dated January 20, 1902, to transport switch ties from Harviell and Poplar Bluff to East St. Louis, for ten cents a hundredweight. It is alleged that, relying on said agreement, plaintiffs shipped nineteen carloads of ties and were charged an excess above the rate mentioned, in violation of the agreement. The letter quoted a rate on lumber, not on ties. The solution of this case depends, therefore, on what the defendant meant by the word “lumber” or rightly was understood by plaintiffs to mean. The meaning of the word is vague and indefinite and it has different senses according to the context in which it is used in documents, or the nature of the transactions to which the parties refer. Most often it designates materials of wood used in constructing houses, fences and other like structures — wooden building material. The Standard Dictionary defines it as “Timber sawed into merchantable form; especially boards;” The Century as: “Timber sawed or split for use, such as joists, boards, planks, • staves, hoops, and the like;” Webster’s Un-» abridged, as: “Timber sawed or split into the form of beams, joists, boards, planks, staves, hoops, etc., especially that which is smaller than heavy timber.” We have found a decision that “timber” as used in a statute giving a lien for supplies furnished to men getting out logs and timber includes ties. Kalloch v. Percher, 47 Wis. 189. No decision has been cited that “lumber” means hewn ties. If the word lumber has any peculiar meaning among dealers in it or in transportation circles, which would embrace or exclude hewn ties, no evidence of the fact was offered. The meaning to be applied to the word in the letter in question is its ordinary meaning in vernacular speech, unless the previous dealings between the plaintiffs and the defendant, or the circumstances under which the letter was written, or the light thrown on the intention of the letter by the other facts in evidence, the tariff sheet and the testimony of the freight agent, compel a different' significance. All this evidence was introduced by the plaintiffs and they are in no position, therefore, to deny, its truthfulness. We emphasize the fact that this is an action on a specific written agreement and is to be determined exclusively by ascertaining what that agreement was. Laclede, etc., Co. v. Iron Works, 169 Mo. 137, 69 S. W. 384. It is not an action for violating the Interstate Commerce Act as construed by the Interstate Commerce Commission, nor for violating the statutes of the State of Missouri in regard to freight rates, nor the orders of the State Board of Railroad Commissioners. Some stress is laid by the defendant’s counsel on the circumstance that railroad ties have a special classification under the statutes of Missouri and that rates for hauling them are fixed by the State Board of Railroad Commissioners. It is true railroad ties are included in class J of the statute classifying railroad freights. R. S. 1899, sec. 1193. Lumber is not classified by the statute; therefore its classification might be made, we suppose, by the Board of Railroad Commissioners. Ross v. R. R., 111 Mo. 18, 19 S. W. 541. But the statutes of Missouri and the rulings of the Missouri Railroad Commissioners have nothing to do with the shipments involved in the present case, which constitute insterstate commerce, as they were made from points in Missouri to a point in Illinois. The Missouri statutes recognize principles of freight regulations and classification similar to those recognized by the national government, but confine the State regulation of railway transportation to shipments from one point in the State to another. We have little doubt that switch ties, sawed or hewn, when hauled from one State to another, ought to be carried at the same rate lumber is. The Interstate Commerce Commission decided as much in Reynolds v. R. R., supra. In saying what is a just classification of articles for the purpose of fixing a scale of transportation charges, the commission has regard to comparative weights and values in proportion to dimensions, and holds that those articles which carry, approximately, the same value and weight with the same bulk, ought, as a rule, to be hauled for the same freight rate. The Howard Co. v. Railway Cos., 4 I. C. C. 212. And when some article is not named on a railway tariff sheet among any of the different classes of freight for which different carriage rates are charged', it is classed with articles analogous to it in weight and value and takes their rate. The Howard Co. v. Ry. Cos., 4 I. C. C. 212, 218; Hulburt v. Ry. Co., 2 I. C. C. 122, 129. According to this rule of classification and the decision in Reynolds v. Ry. Co., it may be that the plaintiffs could have compelled the defendant company to carry hewn ties to a point outside the State at the lumber rate, or have obtained damages, if it refused to do so, for a violation of the Interstate Commerce Act. These observations are not very pertinent to the decision of the present case, but are made because we discern in the record and in the argument of plaintiffs’ counsel an effort to supplement the case on the specific agreement for breach of which they demand redress, with irrelevant matters, by showing a violation of the Federal law regulating interstate commerce; also' by showing a charge for hauling the ties in excess of the one advertised in defendant’s tariff sheet. The petition does not count on a violation of the Interstate Commerce Act as construed by., the commission. Neither does it count on notification to the public in the tariff sheet of the defendant that ties would be hauled for the lumber rate; granting, for argument’s sake, that the defendant’s published schedules contained such a notice. Defendant’s tariff sheet might help the plaintiff’s cause by indicating that the railway officials embraced ties in the word “lumber”. when used by them in statements of freight rates; but could not afford a ground of recovery in this action, by stating expressly or impliedly, that ties would be carried for the lumber rate. If such a statement had been ■ relied on by the plaintiffs and disregarded by the defendant, the facts might have constituted a good case in a petition properly charging them as a cause of acr. tion. But this case; as pleaded, rests on the agreement contained in a particular document which is specifically designated in the petition — the letter written by defendant’s freight agent, January 20, 1902. The statement in the petition that hewn ties are included among the articles mentioned in defendant’s schedule as hauled at lumber rates is not alleged as the gravamen of the case pleaded. There can be no recovery except for a breach of the defendant’s agreement expressed in that letter. As the agreement was to transport lumber for a given rate, and the plaintiffs shipped hewn ties, they can recover only in case lumber meant ties. If they shipped no lumber, but something else, defendant’s undertaking was not broken, even though its charge exceeded the quoted rate. The learned circuit judge partly adopted this view in that portion of the instruction which left it to the jury to say whether hewn switch ties are included in the general definition of lumber. But the issues were broadened' by the part of the instruction which made a finding that the defendant company, in its classification of freight, included ties among articles taking the lumber rate, ground for a verdict against the defendant. As we have said, the railway company’s published classifications of freight might assist the plaintiffs by showing ties were one of the articles called lumber, and thus supporting the interpretation that the agreement in the letter of January 20th to carry lumber at ten cents a hundredweight was an agreement to carry hewn ties at that rate. But putting such ties among other articles enumerated on the tariff sheet to be carried at the lumber rate would have no tendency to prove a violation of the agreement about lumber; rather the contrary; for it would tend to show the defendant did not use the word “lumber” as a name for hewn ties, but designated them by their own name. The instruction was erroneous in its reference to the effect of defendant’s classification of hewn switch ties. Besides, the deposition of Lane, defendant’s official who was introduced by plaintiffs, showed the defendant gave a separate andi higher rate for hewn ties in its tariff sheets, instead of classing them with articles that were hauled at the lumber rate, or meaning to give a rate on ties when they quoted the ona on lumber. The tariff sheet introduced by plaintiffs strengthens this view. It tends to prove the defendant company did not use the word “lumber” to designate anything but building material; at least, not meaning railroad ties. In the long list of articles carried, at lumber rates, we find enumerated thirty different kinds of wooden articles, and among them this one: “Lumber, including ceiling, flooring (except wood carpet), wainscoting.” Articles are enumerated next which take a higher rate than lumber, and fifty-two of them are named. Of these, forty-six took three cents above the lumber rate and six, five cents above. Railroad ties are not named in either list, but are said to be included in the expression “all other woods, lumber rates.” That expression follows'immediately the enumeration of “mahogany, holly and woods of value,” which take three cents above the lumber rate; as do walnut, butternut, cherry and walnut logs. It was explained by the general freight agent that “all other woods, lumber rates,” meant all other woods in the shape of lumber. Be that as it may, the expression “all other woods, lumber rates” tends to refute the contention of plaintiff’s counsel that the noun “lumber” was used by the defendant in a general sense to designate all kinds of woods and, therefore, hewn ties. If this had been so, the mere statement of the rates charged for lumber would have stated the rate for all manufactured woods and it would have been unnecessary to enumerate articles carried not as lumber, but for the lumber rate.

All the evidence tending to explain what the defendant meant when it said “lumber,” either in the letter declared on or other documents, goes to show it did not mean hewn switch ties. The opinion in the Reynolds case was wrongly admitted as evidence. It threw no light on the meaning of the word “lumber” in defendant’s letter to the plaintiffs and probably prejudiced the jury against the defendant by imparting the belief that it had violated the Federal laws in charging a higher rate on switch ties than on lumber. We know of no rule of evidence by which that decision could! be a material fact for the jury’s consideration.

But was the sense in which the defendant used the word lumber in its letter a matter for the jury to decide? If there had been contradictory evidence as to its signifying hewn ties, as used in the lumber trade, it would have been for the jury to weigh such evidence, but there Avas no testimony, either harmonious or conflicting, that it meant ties in commercial circles or Avas used in any other sense than its vernacular one. As Ave have seen, the evidence had no tendency to prove the defendant was accustomed to use it in any other sense, either in general business or its dealings Avith the plaintiffs. The rule of law that extrinsic evidence may be received to identify the subject-matter of an ambiguous contract, has no application here, because the agreement in defendant’s letter had no particular subject-matter. That rule is employed to ascertain what property Avas intended by an agreement in reference to some particular property too loosely described to be identified from the description alone. Thus if a contract of sale describes the thing sold indefinitely, it may, Avithin limits, be helped out by extrinsic evidence. Macdonald v. Longbottom, 1 E. & E. 597; M’Adie v. Sills, 24 U. S. C. 606; 2 Taylor, Evidence (6 Ed.), sec. 1080. We conceive it to be the duty of a court to say what is meant by a word in an instrument, used as far as appears, in its ordinary, instead of a technical or trade sense, or a peculiar one adopted by the parties. As “lumber” is a word of vague meaning, testimony to show the sense in which these parties used it Avas competent; but there Avas none introduced to shoAV it Avas employed in an unusual sense and, therefore, its usual one must be accepted in interpreting their agreement. Williams v. Lumber Co., 72 Wis. 487; Dutch v. Anderson, 75 Ind. 40. The Avords of a contract are to be understood in their popular and accepted sense unless something indicates that a different meaning Avas attached to them by the persons concerned. Lovelace v. Assn., 126 Mo. 104, 28 S. W. 877. And it is the duty of a court to interpret Avritings free from ambiguity. Mathews v. Danahy, 26 Mo. App. 660. In performing this duty a court will reject a strained and unnatural construction of the terms used, which would impose on a party to the agreement a liability neither called for by its language, nor the relations of the parties when it was made. St. Louis Transit Co. v. York, 81 Mo. App. 342. But the court will look at the circumstances under which the contract was made, the relations and occupations of the parties, the usage of business and what they must have mutually understood and expected the agreement to cover, and will adopt the interpreta.tion most likely to give effect to the intention of the parties. Carney v. Water & Light Co., 76 Mo. App. 532. With these trite rúles in mind, let us endeavor to determine whether the defendant company intended to agree to haul switch ties for ten cents a hundredweight, when it agreed to haul lumber at that rate, or reasonably could have been understood to so intend by plaintiffs. We hold that in common speech “lumber” has no meaning that includes hewn railroad ties, so well established as to compel the conclusion that defendant agreed to carry hewn ties for the rate quoted to plaintiffs for lumber. Ties are not embraced in the definitions of lumber given in lexicons enjoying the highest authority, and we doubt if the word is ever used to mean hewn ties. Plaintiffs were in the habit of shipping lumber, ties and piling; they say they had received an order for a large lot of railroad ties and before filling it took pains to inquire of the defendant what rate it would charge to carry that commodity from Harviell and Poplar Bluff to Peoria, Illinois. In truth, they inquired the rate for hauling lumber. Why the plaintiffs, who were regular shippers of several products of wood, should inquire the rate on lumber, when they intended to fill an order for railroad ties, instead of asking specifically for the rate on ties, they do not explain. Their inquiry was misleading and possibly artful. It may be that it was framed for the purpose of inducing the defendant to state a lower rate than it would if asked definitely in regard to switch ties. Defendant’s general freight agent, knowing the plaintiffs to' be dealers in lumber, ties and piling and shippers of the three articles, was very unlikely to understand a request for a rate on lumber as a request for a rate on hewn ties. In truth he was certain not to understand it that way, as the company rated hewn ties separately. The plaintiffs proved there was a rate on hewn ties at the time higher than the lumber rate,- a fact they, as constant shippers of both lumber and switch ties, must have known.

Adverting again to the argument pressed by plaintiffs’ counsel that his clients ought to recover because ties are manufactured wood and, therefore, to he classed among the woods which were hauled at lumber rates, we answer that this carries the implication, not that ties are lumber, but that as manufactured wooden articles, they were to be transported for the same charge. The essence of this case is not whether ties ought to have been carried at lumber rates according to the tariff sheets (and the tariff sheets in fact stated to the contrary), but whether defendant, when it gave a rate for lumber, meant to give and was understood to give a rate for hewn switch ties. Curtain poles and •wagon spokes are put in the tariff sheets among other things carried at the lumber rate. But who would say they are lumber or that an agreement to carry lumber was an agreement to carry them? Neither the letter itself, nor the extrinsic evidence before us supports the plaintiffs’ case. The judgment is, therefore, reversed.

All concur.