Opinion by
Mb. Justice Dean,
The plaintiff, as a common carrier corporation, before 1893, adopted by its proper officers this rule :
“ A charge of one dollar shall be imposed for car service for and upon each car carried over any portion of its line of railroad not unloaded by the consignee within forty-eight hours from the time said car arrived at the destination thereof, ready for delivery to such consignee, for each day or part of day after said forty-eight hours, not including Sundays and legal holidays, during which said car should remain unloaded, the said charge being payable by the consignee or person receiving the car.”
From July, 1893, up to December, 1898, the defendant, which is a large iron and steel manufacturer at Nicetown in Philadelphia county, received from plaintiff consigned to the Steel company, about 14,000 cars laden with iron, coal and other products used in its manufacturing business. A large number of these cars were detained beyond the forty-eight hours, some for many days, before being unloaded. Plaintiff charged for the delay as provided by the rule quoted, and presented monthly bills for the same to defendant, which it refused to pay. In an affidavit of defense it denied the right to make the charge and consequently, its liability to pay. Plaintiff, then took a rule to show cause why judgment should not be entered for want of sufficient affidavit of defense. The aggregate of the charges within the years named, was $4,048. The learned President Judge Abnold of the court below, in his opinion, discharging the rule, says :
“ Conceding that a carrier may charge a consignee a fixed rate in the nature of demurrage for the detention of its cars beyond a reasonable time for discharging their cargoes, and that the rate claimed in the present suit is a reasonable rate, yet there is sufficient denial of the facts upon which the plaintiff bases its claim to prevent the entry of a summary judgment, and therefore, we discharge the rule for judgment for want of a sufficient affidavit of defense.”
[629] From this decree plaintiff brings this appeal, arguing, that the court erred in refusing to make the rule absolute.
The plaintiff has an unquestioned right as a common carrier to make reasonable rules to speed the unloading of its cars; cars are for the transportation of freight, not for its storage. A rule on its face may apparently be unreasonable, either as to time allowed for unloading, or as to the extent of the penalty by which it is sought to enforce a reasonable time limit; or the reasonableness of the rule may be doubtful, in either of which cases, the evidence would be for a jury. But no such question arises here, for the affidavit does not deny the reasonableness of this rule as applicable to others ; it only denies, on other grounds, the right of plaintiff to apply it to these shipments. Where the rule is manifestly a reasonable one, as this one is, both as to time and charge, the court will not take up time by instructing a jury to find the fact, any more than it would instruct a jury, on undisputed facts, to find that a collecting bank had protested a negotiable note within a reasonable time after nonpayment. Although, the question has not been heretofore directly passed upon by this court, it has been decided in several of the states : Miller v. Mansfield, 112 Mass. 260; Norfolk, etc., Railroad Co. v. Adams, 90 Va. 393; 18 S. E. Repr. 673 ; Kentucky Wagon Mfg. Co. v. Ohio, etc., Railway Co., 98 Ky. 152; 32 S. W. Repr. 595, and other cases.
As before noticed, with the plaintiffs statement is filed a complete copy of its account, giving car initials, number, contents, exact hour of arrival, date of release, number of days detained, and amount of charge. None of the cars charged for were kept less than three days, and many of them from seven to twenty-one days. So far as it was in the power of a railroad company to give notice to a consignee of every material fact, the defendant, got this notice from plaintiff when the bills were rendered. Wherein does the affidavit make an issue of fact which ought to go to a jury ? It sets out that the demurrage rule is not applicable to it, because large numbers of the cars consigned to it were unloaded promptly, but being reloaded as outgoing shipments, the detention caused by reloading is embraced in a charge of delay in unloading. The plaintiff having sworn to its detailed statement, having positively [630] averred the number, date of arrival and date of release, as to every car, it was the duty of the defendant to meet this charge, by specifying the cars detained for other reasons, than by neglect to unload. The least error in plaintiff’s account, whether overcharge as to delay, mistake in car, or consignment to defendant, when consigned to some other, could easily have been detected and exposed in the affidavit of defense; every delay occasioned, not by unloading but by reloading, could have been particularly averred. We do not say, that if defendant had been unable to do this, either by neglect to keep accounts or by their loss or destruction, that the court below might not, under the circumstances, have refrained from entering judgment. But the defendant makes no averment of inability to produce accounts which will specify the alleged errors in plaintiff’s account; on the contrary it avers, that, “ the defendant will produce at the trial, its own records, carefully prepared under a system adapted to prevent error, for the purpose of proving that the plaintiff’s records are inadequate as a basis of claim.” It thus asserts, that it has in its possession accurate accounts which at the trial in the court before a jury will defeat plaintiff’s claim in part at least; yet, with seeming caution it refrains from specifying the particulars then before it. This defeats the very purpose of the affidavit of defense law. Its object was to hasten final judgment by setting out in the affidavit the groundlessness of the whole or part of plaintiff’s claim, or by averring that it had been paid, and how, in whole or in part. The parties might then, in that early stage of the proceedings be brought together; the plaintiff might abandon his claim in whole or in part. This affidavit specifies nothing in answer to plaintiff’s full and complete specifications.
Every averment is an inference from a “ carefully prepared ” system of bookkeeping of its own, without a copy of the particulars which would demonstrate the errors of plaintiff’s charges. “ The affidavit should state specifically and at length the nature and character of the defense relied on: ” Bryar v. Harrison, 37 Pa. 233. “ The spirit of the affidavit of defense law abhors evasion and equivocation and punishes them by entering judgment: ” Endlich on Affidavits of Defense, sec. 377; Woods v. Watkins, 40 Pa. 458.
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Opinion by
Mb. Justice Dean,
The plaintiff, as a common carrier corporation, before 1893, adopted by its proper officers this rule :
“ A charge of one dollar shall be imposed for car service for and upon each car carried over any portion of its line of railroad not unloaded by the consignee within forty-eight hours from the time said car arrived at the destination thereof, ready for delivery to such consignee, for each day or part of day after said forty-eight hours, not including Sundays and legal holidays, during which said car should remain unloaded, the said charge being payable by the consignee or person receiving the car.”
From July, 1893, up to December, 1898, the defendant, which is a large iron and steel manufacturer at Nicetown in Philadelphia county, received from plaintiff consigned to the Steel company, about 14,000 cars laden with iron, coal and other products used in its manufacturing business. A large number of these cars were detained beyond the forty-eight hours, some for many days, before being unloaded. Plaintiff charged for the delay as provided by the rule quoted, and presented monthly bills for the same to defendant, which it refused to pay. In an affidavit of defense it denied the right to make the charge and consequently, its liability to pay. Plaintiff, then took a rule to show cause why judgment should not be entered for want of sufficient affidavit of defense. The aggregate of the charges within the years named, was $4,048. The learned President Judge Abnold of the court below, in his opinion, discharging the rule, says :
“ Conceding that a carrier may charge a consignee a fixed rate in the nature of demurrage for the detention of its cars beyond a reasonable time for discharging their cargoes, and that the rate claimed in the present suit is a reasonable rate, yet there is sufficient denial of the facts upon which the plaintiff bases its claim to prevent the entry of a summary judgment, and therefore, we discharge the rule for judgment for want of a sufficient affidavit of defense.”
[629] From this decree plaintiff brings this appeal, arguing, that the court erred in refusing to make the rule absolute.
The plaintiff has an unquestioned right as a common carrier to make reasonable rules to speed the unloading of its cars; cars are for the transportation of freight, not for its storage. A rule on its face may apparently be unreasonable, either as to time allowed for unloading, or as to the extent of the penalty by which it is sought to enforce a reasonable time limit; or the reasonableness of the rule may be doubtful, in either of which cases, the evidence would be for a jury. But no such question arises here, for the affidavit does not deny the reasonableness of this rule as applicable to others ; it only denies, on other grounds, the right of plaintiff to apply it to these shipments. Where the rule is manifestly a reasonable one, as this one is, both as to time and charge, the court will not take up time by instructing a jury to find the fact, any more than it would instruct a jury, on undisputed facts, to find that a collecting bank had protested a negotiable note within a reasonable time after nonpayment. Although, the question has not been heretofore directly passed upon by this court, it has been decided in several of the states : Miller v. Mansfield, 112 Mass. 260; Norfolk, etc., Railroad Co. v. Adams, 90 Va. 393; 18 S. E. Repr. 673 ; Kentucky Wagon Mfg. Co. v. Ohio, etc., Railway Co., 98 Ky. 152; 32 S. W. Repr. 595, and other cases.
As before noticed, with the plaintiffs statement is filed a complete copy of its account, giving car initials, number, contents, exact hour of arrival, date of release, number of days detained, and amount of charge. None of the cars charged for were kept less than three days, and many of them from seven to twenty-one days. So far as it was in the power of a railroad company to give notice to a consignee of every material fact, the defendant, got this notice from plaintiff when the bills were rendered. Wherein does the affidavit make an issue of fact which ought to go to a jury ? It sets out that the demurrage rule is not applicable to it, because large numbers of the cars consigned to it were unloaded promptly, but being reloaded as outgoing shipments, the detention caused by reloading is embraced in a charge of delay in unloading. The plaintiff having sworn to its detailed statement, having positively [630] averred the number, date of arrival and date of release, as to every car, it was the duty of the defendant to meet this charge, by specifying the cars detained for other reasons, than by neglect to unload. The least error in plaintiff’s account, whether overcharge as to delay, mistake in car, or consignment to defendant, when consigned to some other, could easily have been detected and exposed in the affidavit of defense; every delay occasioned, not by unloading but by reloading, could have been particularly averred. We do not say, that if defendant had been unable to do this, either by neglect to keep accounts or by their loss or destruction, that the court below might not, under the circumstances, have refrained from entering judgment. But the defendant makes no averment of inability to produce accounts which will specify the alleged errors in plaintiff’s account; on the contrary it avers, that, “ the defendant will produce at the trial, its own records, carefully prepared under a system adapted to prevent error, for the purpose of proving that the plaintiff’s records are inadequate as a basis of claim.” It thus asserts, that it has in its possession accurate accounts which at the trial in the court before a jury will defeat plaintiff’s claim in part at least; yet, with seeming caution it refrains from specifying the particulars then before it. This defeats the very purpose of the affidavit of defense law. Its object was to hasten final judgment by setting out in the affidavit the groundlessness of the whole or part of plaintiff’s claim, or by averring that it had been paid, and how, in whole or in part. The parties might then, in that early stage of the proceedings be brought together; the plaintiff might abandon his claim in whole or in part. This affidavit specifies nothing in answer to plaintiff’s full and complete specifications.
Every averment is an inference from a “ carefully prepared ” system of bookkeeping of its own, without a copy of the particulars which would demonstrate the errors of plaintiff’s charges. “ The affidavit should state specifically and at length the nature and character of the defense relied on: ” Bryar v. Harrison, 37 Pa. 233. “ The spirit of the affidavit of defense law abhors evasion and equivocation and punishes them by entering judgment: ” Endlich on Affidavits of Defense, sec. 377; Woods v. Watkins, 40 Pa. 458.
The further objection to plaintiff’s claim is, that it does not [631] aver expressly or impliedly that these parties ever became parties to any contract for payment of demurrage on detained cars. But, they were parties to the contract of shipment over plaintiff’s railroad and this is averred; and then, further, it is averred, that since the demurrage rule was adopted, it has formed part of the contract of shipment. This is sufficient averment of the implied contract. As a consignee of goods over plaintiff’s railroad, it impliedly contracted to submit to all reasonable rules for the regulation of shipments. That the shipper was not consulted in framing the rules, does not affect their validity: Wagon Co. v. Ohio Railway Co., supra. There is no duty on a common carrier to consult, either its shippers or consignees, as to the wisdom of its rates of freight for carrying, or rules for demurrage; as to the one, it cannot exceed a lawful rate, as to the other, it cannot exceed a reasonable charge. Within these bounds, it is presumed, in the interests of its stockholders and the public, to properly conduct its own business. The defendant further avers, in its affidavit that “ prior to 1893, or at any time subsequent thereto,” it had no knowledge that plaintiff had established a rule relating to the demurrage charges set forth in its statement, and, that no notice of such rule was ever communicated prior to the bringing of this suit; but then it says : “ At various times during the year 1893 and subsequently, bills have been rendered to the defendant by plaintiff for demurrage, charges, but said bills did not contain notice of any regulation or rule, on which said charges were or could be based, nor were the charges in said bills consistent with the terms of the regulations upon which the plaintiff has declared.” This is inconsistent and evasive both in language and substance. That plaintiff did adopt such rule, is clearly shown by its uniform charges; it was not bound to serve a verbatim copy of the rule on defendant; that could have shown nothing so specifically as the charge, which plainly says, what detention is allowed, what excess is charged, on what car and on what goods. And that defendant had full knowledge, is shown by its own admission, that bills for violation of the rule were regularly rendered. We think this affidavit falls short of what the law calls sufficient. It raises no issue of fact calling for the intervention of a jury and the law is clearly with the plaintiff.
Therefore the decree discharging the rule is reversed and [632] the record is remitted to the court below with directions to enter judgment for plaintiff, unless other legal or. equitable cause be shown to the court below, why such judgment should not be entered.