TM Partridge Lumber Co. v. Michigan Cent. R. Co.

Eighth Circuit

TM Partridge Lumber Co. v. Michigan Cent. R. Co.

26 F.2d 615, 1928 U.S. App. LEXIS 3750

CourtCourt of Appeals for the Eighth Circuit

DecidedMay 16, 1928

Docket7656

StatusPublished

Cited by10 cases

This text of 26 F.2d 615 (TM Partridge Lumber Co. v. Michigan Cent. R. Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

TM Partridge Lumber Co. v. Michigan Cent. R. Co., 26 F.2d 615, 1928 U.S. App. LEXIS 3750 (8th Cir. 1928).

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OTIS, District Judge.

On April 18, 1922, the plaintiff in error, defendant below and hereinafter referred to as the defendant, shipped a ear of cedar poles from St. Boniface, Manitoba, to itself at Pinconning, Mich. Later the shipment was reeonsigned, and on or about May 16, 1922, delivered to the Detroit Edison Company at Detroit. Defendant should have paid defendant in error, plaintiff below and hereinafter referred to as plaintiff, $345.63 as freight charges. It did pay $386.50, or $40.87 more than was justly due. It claimed a refund, and was erroneously refunded $60.21 more than the amount to which it was entitled. On September 8, 1924, to partially reimburse plaintiff for this overpayment, defendant paid plaintiff $4.46, leaving still unpaid of the overpayment the amount of $55.75. Plaintiff brought this suit February 19,1926, and had judgment below for that amount.

It is one of the contentions of defendant that, if this is an action to recover freight charges, then the statute of limitations had run before the action was begun. The statute reads:

“All actions at law by carriers subject to this act for recovery of their charges, or any part thereof, shall be begun within three years from the time the cause of action accrues, and not after.” 41 Stat. 492; Comp. Stat. § 8584 (49 USCA § 16 (3), (a).

But that'this is not an action for the recovery of charges is too clear for argument) and the trial court properly so held. Therefore this statute has no application. The trial court held, we'.think properly, that the action is one on implied contract to refund money paid through error. If so, however, it is not a suit or proceeding arising under any law regulating commerce, or within any other class of suits of which the federal District Courts have original jurisdiction. For that reason it should have been dismissed by the trial court. Section 37, Judicial Code (28 USCA § 80).

Reversed, with directions to dismiss at plaintiff’s costs.

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OTIS, District Judge.

On April 18, 1922, the plaintiff in error, defendant below and hereinafter referred to as the defendant, shipped a ear of cedar poles from St. Boniface, Manitoba, to itself at Pinconning, Mich. Later the shipment was reeonsigned, and on or about May 16, 1922, delivered to the Detroit Edison Company at Detroit. Defendant should have paid defendant in error, plaintiff below and hereinafter referred to as plaintiff, $345.63 as freight charges. It did pay $386.50, or $40.87 more than was justly due. It claimed a refund, and was erroneously refunded $60.21 more than the amount to which it was entitled. On September 8, 1924, to partially reimburse plaintiff for this overpayment, defendant paid plaintiff $4.46, leaving still unpaid of the overpayment the amount of $55.75. Plaintiff brought this suit February 19,1926, and had judgment below for that amount.

It is one of the contentions of defendant that, if this is an action to recover freight charges, then the statute of limitations had run before the action was begun. The statute reads:

“All actions at law by carriers subject to this act for recovery of their charges, or any part thereof, shall be begun within three years from the time the cause of action accrues, and not after.” 41 Stat. 492; Comp. Stat. § 8584 (49 USCA § 16 (3), (a).

But that'this is not an action for the recovery of charges is too clear for argument) and the trial court properly so held. Therefore this statute has no application. The trial court held, we'.think properly, that the action is one on implied contract to refund money paid through error. If so, however, it is not a suit or proceeding arising under any law regulating commerce, or within any other class of suits of which the federal District Courts have original jurisdiction. For that reason it should have been dismissed by the trial court. Section 37, Judicial Code (28 USCA § 80).

Reversed, with directions to dismiss at plaintiff’s costs.

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26 F.2d 615, 1928 U.S. App. LEXIS 3750, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tm-partridge-lumber-co-v-michigan-cent-r-co-ca8-1928.

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