Thayer v. Burchard

99 Mass. 508

Opinion

Wells, J.

Footnotes

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This action is founded upon an agreement relating to rates of freight, for transportation of flour and grain over a line of connecting roads. The agreement was effected by means of correspondence. The defendants contend that the terms of the agreement are to be sought only in the final letter of each party, in which the negotiation terminated by a certain proposition made and accepted; that the previous letters are merely preliminary, and, not being referred to in the final proposition, form no part of the contract which resulted from the correspondence, and therefore cannot be used to enlarge or explain its meaning and application.

If the correspondence had been followed by a formal written agreement, covering the whole subject matter, complete in itself and unambiguous in its terms, the position of the defendants might be correct. But that is clearly not the case here. Although the defendants’ letter of June 30 does not expressly refer to the previous correspondence, it is manifestly based upon it, and requires its aid to give full significance to the letter itself The correspondence is continuous and consecutive in its relation to the subject, and in legal contemplation is contemporaneous; as much so certainly as verbal negotiations begun in the morning and resumed and completed at evening. Cunningham v. Parks, 97 Mass. 172.

Taking the correspondence together, it is apparent that the expression “ We will take your flour and grain ” refers to the flour and grain purchased and to be purchased by the plaintiffs for transportation to various points on the Connecticut River Railroad, and to be delivered to the defendants at Schenectady, by way of the Erie Canal or the New York Central Railroad. It is evident also that the proposition to deliver at Northampton was not intended to be exclusive of the other points upon the Connecticut River Railroad which had been mentioned in their previous letter of June 23. In that previous letter the defendants had made a discrimination against Northampton, as compared with the other places mentioned. The plaintiffs’ letter of June 26 is devoted mainly to the discussion of that difference. The special mention of Northampton in the defendants’ letter of June 30 indicates that the defendants conceded that point, and made the rate for Northampton correspond with that for the other places, and thus to represent the whole in the proposition which they made and which the plaintiffs accepted.

The contract relates only to the rates of freight. It does not import any other change in the relations of the parties. It does not impose any additional duty upon the defendants, to receive and transport without delay the plaintiffs’ goods, than they were already under as public carriers. Neither does it apply to any definite amount of business or quantity of goods to be so transported. The plaintiffs did not, by their acceptance of the terms, engage to furnish goods for transportation. Although they should purchase goods for that purpose, they might, at any time before their delivery at Schenectady and notice to the defendants to transport them, divert them to another route. Until such delivery and notice, there was no mutuality of obli gation. The matter stood, in this respect, as upon an open proposition by the defendants, which the plaintiffs might make operative as a contract by delivering goods and calling for their transportation. To extend the obligation of the defendants beyond that limit would leave it, as it seems to us, without limit and without mutuality.

It is contended that the information that the plaintiffs would be governed, in their purchases at the West, by the result of these negotiations, made it incumbent upon the defendants to transport all goods at the agreed rate, which had been purchased with a view to such transportation; or at least all that were actually in transitu before notice of a change of rate. But the contract makes no such proviso. Nor does it even provide that all goods arrived at Schenectady, when such notice is given, shall be carried at that rate. No length of notice is stipulated for, and no reservation in favor of goods ready for transportation at the time of such notice. The absence of any such express proviso is significant against the construction contended for. Aside from express agreements, a carrier may always charge a reasonable compensation for every service performed. He may refuse to receive goods for transportation unless such reasonable compensation be paid. Goods received and transported must be carried at the customary rates previously charged, because the parties will be presumed to have contracted with reference to those rates, until notice of a change is given, either public or personal. Fitchburg Railroad Co. v. Gage, 12 Gray, 393

In this case, the notice given was reasonable, and all that was required by the terms of the contract. The only question is, whether the transactions between the parties, previous to the notice, were such as to make that contract attach to any particular quantity of goods, so that the obligation of the defendants became absolute to transport them at the agreed rate notwithstanding notice of an advance of rates.

The course of business between the parties was this: The plaintiffs’ grain, on arrival at Schenectady, was transferred and received into the elevator of Maxon & Co., where it remained on storage until loaded directly from the elevator into the cars by which it was to be transported to the plaintiffs. For this purpose a track was laid from the freight house of the Rensselaer and Saratoga Railroad (which road formed part of the line in whose behalf the contract was made) into the yard of Maxon & Co. When cars were furnished for this transportation, they were run by this track into the yard of Maxon & Co., and by them taken into the elevator and loaded. Maxon & Co. performed the same service for other parties, as well as for the plaintiffs ; and the order in which the grain of their several customers should be forwarded was determined by them, and not by the railroad company. This arrangement relieved the railroad company from the necessity of making extensive provisions for transferring freight, and storing it while delayed for want of cars, and imposed the expense of storage upon the owners. But we think that the arrangement was so far a substitution of the elevator of Maxon & Co. for freight houses of its own, that, under an express contract for the carriage of goods at a fixed rate until notice to the contrary, a delivery of grain at and its transfer into the elevator, accompanied by notice from the owner that it was so delivered and stored, in readiness and for the purpose of being transported upon the terms of the contract, were equivalent to a delivery to and acceptance by the railroad company itself, at its own freight house. After the goods had been so received, it was too late, as to those goods, to give notice of an increase of rates. The contract for transportation at four dollars per ton attached to them, notwithstanding its termination for all other purposes, before they were actually carried over the road. But the plaintiffs could not, after such notice and before the time fixed for the advance of rates, proceed to accumulate grain at the elevator beyond the capacity of the railroad to receive and transport, and require that all grain so accumulated before October 1 should be transported at the same rate after that time-

Upon the question of liability on the ground of delay, it does not appear from the agreed facts that the defendants were in fault, either in respect to the proper equipment of their roads, or their facilities for doing the ordinary business of that route; or - in the manner in which they applied such means as they had ie the performance of the extraordinary amount of service which was pressing upon them at that season. They were not bound by their contract, nor would they have been justified by their duties as public carriers, to have devoted all their cars, or an undue proportion of them, to the carriage of the plaintiffs’ grain by the exclusion of others. And besides, the disposition of the cars which they were able to furnish was not made by them, but controlled by Maxon & Co., who were agents of the plaintiffs in that respect. For losses, expenses, or other damage arising from mere delay, occasioned by a temporary excess of business, and without fault, the carrier is not responsible. Wibert v. New York & Erie Railroad Co. 2 Kernan, 245. Parsons v. Hardy, 14 Wend. 216. Taylor v. Great Northern Railway Co. Law Rep. 1 C. P. 385.

The plaintiffs are entitled to recover the amount paid by them in excess of the rate of four dollars per ton, for all grain which had been received at the elevator and transferred into the possession and control of Maxon & Co. for the purpose of transshipment upon the defendants’ line of railroad, before notice was given of the proposed change of rates. The agreed facts do not enable this court to determine for what amount judgment should be rendered, upon the principles above stated. This must be ascertained in the superior court in such manner as that court shall direct; and thereupon judgment is to be entered according to the result. As there is apparently something due to the plaintiffs,

The judgment for the defendants in the superior court must be set aside.

After the foregoing decision, the case was submitted, in the superior court, by agreement of the parties, to Scudder, J., without a jury, to determine the amount for which the plaintiffs were entitled to judgment; and he made the following report:

“ It appears that at the date of the notice of September 18 there were actually in the elevator of Maxon & Co., at Schenectady, five hundred and forty-two tons of corn on which the plaintiffs are entitled to recover an overcharge of one dollar and sixty cents per ton, with interest from the date of the plaintiffs’ writ, no prior date of payment or demand having been proved or agreed upon ; in all, the sum of $978.49. The plaintiffs further claimed to recover at the same rate on three boat loads of corn, containing two hundred and twenty tons each, which they contended had been shipped, and were on the way, or had arrived at Schenectady, before the notice of September 18 had been given, but which had not been actually taken into the elevator of Maxon & Co.; and upon this claim they offered testimony, which was objected to by the defendants as irrelevant and inadmissible, but which was taken, at the request of the plaintiffs, subject to the opinion of the court as to its admissibility and effect.” The report then recited the testimony in full, and continued: “ Upon this testimony the court find that neither of said three boat loads had been received at the elevator of Maxon & Co., and transferred into their possession and control for the purpose of transshipment on the defendants’ line of railroad before notice was given of the proposed change of rates; and that the plaintiffs are not entitled to recover the overcharge claimed upon the cargoes of said boats or any one thereof. The court accordingly find that the plaintiffs are only entitled to recover of the defendants the sum of $978.49 before stated, and for that sum the plaintiffs are entitled to judgment.”

Part of the testimony of the plaintiff Sergeant recited in the report was to the effect that he did not know whether the defendants’ notice of the increase in the rates of freight was received by the plaintiffs on September 18 or September 19, but he thought it was received on September 19 about six o’clock in the afternoon. There was also testimony of a member of the firm of Maxon & Co. that they received from Buffalo the bills of lading of the three boat loads not later than September 13, and their usage was to hold cargoes for their charges and back-charges ; that the three loads were taken into the elevator on September 20, 21 and 22; that they paid no charges on these, cargoes till taken into the elevator; and that “ by paying the back-charges the plaintiffs could have placed these boat loads wherever they pleased.” And further, there was testimony of the captain of the Anan Harmon, one of the three boats, that he arrived at Schenectady, with his boat, on the evening of September 18, and on the morning of the 19th gave Maxon & Co. notice of his arrival.

A bill of exceptions, preferred by the plaintiffs and allowed by the judge, set forth this report, and was in substance as follows:

“ In addition to the testimony recited, the plaintiffs relied on the evidence contained in the agreed statement of facts and letters used at the former hearing before the supreme judicial court, and also offered evidence tending to show that' the three boat loads of corn referred to in said agreed statement as having been put into the elevator on the 20th, 21st and 22d of September were the same 24,000 bushels referred to in the plaintiffs’ letter of September 5 as “ afloat on Lake Erie,” and again referred to in their letter of September 15 to which the defendants’ letter of September 17 was in response. The plaintiffs contended that if the court should be satisfied that these three boat loads, or one or more of them, had been shipped from Buffalo to Maxon & Co., who held the bills of lading as security for their own as well as for back-charges, having a lien on the cargoes therefor, then in law they were so far within the custody and control of Maxon & Co., as agents of the plaintiffs, and also, for certain purposes, of the defendants, that the notice of September 18 would not relieve the defendants from carrying at the lovver rate whatever had been so shipped, even though not put in the elevator at the date of the notice. The plaintiffs also relied on the letters above specified, and all the other letters contained in said agreed statement, and insisted that the defendants, by not declining to carry at the lower rate when first advised that the 24,000 bushels were in transitu for Schenectady, were estopped afterwards to give a notice which would take this corn out of the contract price. The plaintiffs also offered to show that, relying on the defendants’ agreement to carry at the lower rate, they had, before receiving said notice, made contracts to deliver the greater part of said grain to different customers along the line of connecting roads covered by the defend ants’ contract, and contended that the grain so contracted for was not subject to the higher rates. The plaintiffs also asked the court to rule that, if the Anan Harmon arrived at Schenectady on the evening of September 18, and the defendants’ notice of the 18th was not received by the plaintiffs till after business hours on that day, that boat load would not be subject to the advanced rates. But the court, in view of the opinion of the supreme judicial court already delivered in the case, declined to treat or regard any portion of the three boat loads above mentioned as subject to the lower rates of contract, and assessed the damages at the amount stated in said report.”

These exceptions were argued at September term 1869 by the same counsel.

Wells, J. The rulings of the superior court appear to us to be in precise accordance with the decision previously made in this case. The contract between these parties gave the defendants an unqualified right to terminate it by notice. No length of notice was stipulated for, and no reservation in favor of grain about to arrive. The plaintiffs could not, by their own arrangements of business, or by their contracts with other parties, restrict this right of the defendants; nor could they, by informing the defendants of their arrangements and expectations in regard to the receipt of freight over the canal, modify that right, or impose upon the defendants any different obligation from that which their contract expressed.

The ground on which grain already received at the elevator of Maxon & Co., with notice to the defendants that it was there for transportation, was held not to be subject to the increased rates, was, that such receipt and notice were equivalent to a delivery to the defendants for that purpose. By their arrangements and mode of use, the defendants had made the elevator of Maxon & Co. a sort.,of substitute for warehouses of their own. It was the fact that the grain was there stored and awaiting the convenience of the defendants to transport it, which deprived the defendants of the right to affect such grain by notice of a change of-rates. Any rights which Maxon & Co. might acquire in or to the property by contract with the plaintiffs, or by virtue of charges or advances made upon it, would have no bearing upon the question. Constructive possession by them, as consignees, could in no way affect these defendants. Actual possession by them, otherwise or elsewhere than at their elevator, would be ineffectual to modify the obligations of the defendants in respect to its transportation. Actual delivery of the grain at a place designated or assented to by the defendants for the purpose, with a request for its transportation, was such an offer of freight under the contract as required its transportation upon the terms of that contract, and made a notice of change of rates then too late. But, until such delivery and request, the obligation of the defendants could not be made absolute by any contracts or arrangements of the plaintiffs with other parties.

Upon the facts reported, and the findings of the superior court thereon, it is to be taken as conclusively established that no one t>f the boat loads, about which the controversy is now pending, had been so delivered and received before the receipt of notice of the change of rates. The exceptions are therefore overruled.

Foster, J., did not sit in this case.