Kuerzi v. Maier

95 Misc. 537, 159 N.Y.S. 725

• Court: Appellate Terms of the Supreme Court of New York
• Decided: June 15, 1916
• Status: Published

Opinions

Guy, J.

Plaintiff’s assignor, N. P. Sloan Company, on or about July 3, 1915, purchased from the defendants 1,000 bales of clean Texas millrun linters at four and three-eighth cents a pound, compressed shipside New Orleans, La.; terms, sight draft attached to bill of lading.

From subsequent correspondence it appears that at the time of the purchase the linters were stored at Fort Worth, Tex., uncompressed; that defendants suggested it would be , just as well to ship the goods from Fort Worth on a through bill of lading direct to the customer of the plaintiff’s assignor at Phillipsdale, E. I., the defendants when rendering invoice deducting for the freight from Fort Worth to New Orleans; that plaintiff’s assignor instructed defendants to ship the goods to Phillips-dale by the cheapest route possible, stating in their letter to defendants dated July ninth: “You can then bill the linters up sending them forward freight collect, deducting freight to New Orleans, ship side compressed, from your invoice;” and in their reply of July tenth defendants said: “ Please note I have arranged the cheapest possible freight rate with the Southern Pacific line, namely 85^ per 100 lbs., same representing through rate from Port Worth to Phillipsdale, R. I. via New Orleans and New York. * * * The lot will be moved over the Southern Pacific line from Port Worth to New Orleans, and from there by the Southern Pacific boat to New York and then via Providence line to Phillipsdale, R. I. I shall bill the goods in accordance with your request, deducting freight from Port Worth to New Orleans, namely 51 f, per 100 lbs. I have given instructions to consign the goods to 1 order ’ Phillipsdale, notifying you at Philadelphia.”

Before the delivery of the goods the invoice, bill of lading and sight draft were received by plaintiff’s assignor, the Sloan Company; and there was deducted from the invoice freight at the rate of forty-nine cents per 100 pounds from Port Worth, Tex.-, to ship side New Orleans, amounting to $2,631.88. The Sloan Company honored the draft but disputed the correctness of the credit, claiming that instead of deducting $2,631.88 there should have been deducted $3,243.33, the last figure being ' arrived at by calculating the freight from Port Worth to New Orleans at sixty-one cents per 100 pounds instead of forty-nine cents as allowed by the defendants; and the action was to recover the difference of $611.45 with interest.

It appears from the evidence that all the railroads but one charge sixty-one cents per 100 pounds on linters from Port Worth to New Orleans; that this rate included'compression by the railroads; that the road which made the lower rate, said to be forty-nine and one-half cents, was the Texas Pacific; and defendants claim that the goods were sent over that line to New Orleans. Defendants’ counsel tried to show what the respective freight rates were throughout the trip from Fort Worth to Phillipsdale and the portion of the eighty-five cent through rate that was paid to the respective carriers on the route; but the court sustained the objections of plaintiff’s counsel to the questions, holding as matter of law from the correspondence that the defendants should have deducted sixty-one cents per 200 pounds from the invoice, and directed a verdict for the amount claimed in favor of plaintiff. Under the agreement of the parties the defendants were required to pay, in addition to the cost of compression, the actual expense of transporting the goods from Fort Worth to shipside New Orleans. Accordingly plaintiff’s assignor was entitled to deduct from the invoice so much of the bill as represented the actual freight charge including compression; and the fact that the tariff rates (with the exception of the one applicable to the Texas Pacific road) would have called for a larger deduction did not' authorize a credit of such tariff rate to the purchaser. If this construction be correct it was error to exclude proof of the actual cost of carriage, including compression, from Fort Worth to New Orleans.

If plaintiff does not contest the correctness of that claim, and the parties will so stipulate, judgment may be entered for the plaintiff for the difference between that rate and the forty-nine and one-half cents which defendants mistakenly deducted, with’appropriate costs in the court below, and, as so modified, the judgment may be affirmed, without costs of this appeal. Otherwise it must be reversed and a new trial granted, with costs to appellant to abide the event.

Philbiu, J„, concurs.