Hurt v. Atlanta, B. & A. Ry. Co.

MERRITT, J. [1] Neither the motion of the defendant to strike count 4 of the complaint nor the plaintiff’s motion to strike defendant’s pleas 8 and 9 appear to have been reduced to writing and filed, so as to become a part of the record, nor are they made a part thereof by bill of exceptions; hence the assignments of error relating to these motions present nothing for review. Southern Ry. Co. v. Freeman, 16 Ala. App. 687, 81 South. 135; Acts 1915, p. 598. [2] When the tariff or rate for the carriage of goods is fixed and approved by the Interstate Commerce Commission, and published as required by law, the law reads into every contract of affreightment such lawful and published rate. L. & N. R. R. Co. v. McMullen, 5 Ala. App. 662, 69 South. 683; Armour Pkg. Co. v. U. S., 209 U. S. 56, 28 Sup. Ct. 428, 52 L. Ed. 681. [3] After the completion of a contract oi carriage, the carrier may maintain an action of assumpsit on the common counts to recover the lawful rate, or any unpaid balance thereof, against the owner of the .goods., Williams v. Shows, 187 Ala. 132, 65 South. 839. [4] As we construe them, counts 1 and 2 are, in substance, nothing more than common counts, and the demurrers thereto were properly overruled. [5] If the plaintiff was entitled to recover at all, it was entitled to recover under the common counts; and whether the action of the court in overruling the demurrers to the special counts was error is unnecessary to determine, since there is nothing in this record to show that these rulings were prejudicial to the defendant. Sovereign Camp, W. O. W., v. Ward, 201 Ala. 446, 78 South. 824. [6-8] The facts stated in defendant’s plea 3 are in negation of the plaintiff’s ownership of the claim sued on, and were admissible under the general issue. Therefore the ruling of the court on the demurrers to this plea does not constitute reversible error. The substance of plea 5, to which the demurrer was sustained, is the same as plea 4, on which issue was joined, and the defendant had the benefit of this defense under plea 4. The sixth plea avers that the indebted *243 ness sought to be set off against the plaintiff’s demand was due from the plaintiff “or the receiver operating the same,” who was not a party to this suit; and the demurrer to this plea was properly sustained. Code 1907, § 5858; Fowler v. Bellinger, 140 Ala. 540, 37 South. 225. [9] The principles above stated, and upon which plaintiff’s cause of action rests, pre^ elude the defense embodied in pleas 7 and 10. The defendant, when he entered into the alleged contract, was charged with notice of the lawful and published rate, and therefore could not he deceived as to his liability under the contract of carriage. L. & N. R. R. Co. v. McMullen, supra. This disposes of all the questions presented by this record, and, finding no reversible error, the judgment of the circuit court will be affirmed. Affirmed.