Kingman Distributing Co. v. Davis

Stephens, P. J. Carey L. Davis brought suit against King-man Distributing Company, to recover for alleged breach of an executory contract by which the plaintiff was to transport a certain quantity of apple cider from Martinsburg, West Virginia, to thé: defendant in Macon. It was alleged that the defendant had breached the contract by refusing to permit the plaintiff to transport a certain portion of the cider, to the plaintiff’s damage in an alleged amount. The defendant denied liability under the contract, and alleged that the plaintiff did not have a permit or certificate from the Interstate Commerce Commission authorizing him to engage in interstate transportation of property, as required by the laws of the United States. It appears without dispute from the evidence that at the time of the execution of the contract, and *765 at the time of its alleged breach, there had not been issued to the plaintiff the permit required of a person engaged in transportation in interstate commerce. It appears that the plaintiff, after having executed the contract, transported from West Virginia to Macon a portion of the cider without having obtained the required permit, and that the defendant had paid him the transportation charges therefor. The plaintiff testified that when he entered into the contract the defendant promised that he would, if a Federal permit were required, procure the permit. This the defendant denied. The evidence is in conflict as to the agreement with respect to the quantity of cider to be transported. It appears from the evidence that the defendant refused to go on with the contract afteT the plaintiff had transported a portion of the cider which the plaintiff claims under the contract he was entitled to haul.The plaintiff testified that he was ready, able, and willing to comply with the contract, and demanded that he be permitted to haul. the entire quantity of cider or be paid the loss sustained by reason of the breach, and that the defendant refused to do either. There was evidence tending to show the amount of the plaintiff’s alleged damage. The jury returned a verdict of $722 in favor of the plaintiff. The defendant moved for a new trial on general and special grounds, contending that the verdict was contrary to law and without evidence to support it, that the contract was invalid and unenforceable as it appeared conclusively from the evidence that the plaintiff had not obtained the permit from the Interstate Commerce Commission as required by the motor-carrier’s act, and that on this ground the verdict was unauthorized. The court overruled the motion, and the defendant excepted. If the plaintiff falls within any definition of a carrier by motor vehicle in interstate commerce as defined in the Federal motor-carrier’s act of 1935 (49 U. S. C. A. Cum. Supp. 1940, p. 76), he is a "contract carrier.” The term "contract carrier by motor ve-. hide” is defined in section 203 (15) of the act as being “any person, not included under paragraph 14 of this act, who or which under special and individual contracts or agreements, and whether directly or by lease or any other arrangement, transports passengers or property in interstate or foreign commerce by motor vehicle for compensation.” Section 209 provides that "no person shall *766 engage in the business of a contract carrier by motor vehicle in interstate or foreign commerce on any public highway . . unless there is in force with respect to such carrier a permit issued by the commission, authorizing such person to engage in such business.” It will be observed that a “contract carrier” is any person who by lease or any other arrangement transports passengers •or property “in interstate or foreign commerce by motor vehicle,” and that the permit is to be issued to the contract carrier, as provided by the act, and no person shall engage in the business of a contract carrier by motor vehicle in interstate commerce “on any public highway” unless there is in force “with respect to such carrier a permit issued by the commission, authorizing such person to engage in such business.” A contract carrier as defined in this act is therefore not a person who merely makes contracts for the purpose of transportation by motor carrier in interstate commerce, but is a person who “transports passengers or property in interstate or foreign commerce by motor vehicle,” and the permit required is to be issued to such carrier who is engaged in the business of a contract carrier by motor vehicle on any “public highway.” As provided by this act, as respects doing business without the permit required, it is only unlawful for a contract carrier to engage in interstate commerce on a “public highway” in the “transportation” by motor carrier, where there is not in force at the time with Tespect to such carrier a permit by the commission authorizing the carrier to engage in such business, which, as defined by the act, is the business of transporting passengers or property in interstate or foreign commerce under some contractual arrangement. It follows that for the mere making of a contract between a person as a motor contract carrier and another, for the purpose of transportation of property of the latter in interstate commerce, no permit is required to be issued by the commission; and that the mere making of an executory contract, by which one of the parties agrees to transport in interstate commerce property belonging to another, is not void or illegal on the ground that no permit, as required by section 209 of the motor-carriers act, has been issued by the commission. Therefore, in a suit by the party engaging to transport in interstate commerce property of the other contracting party against the latter to recover damages for a breach of the executory contract by reason of failure to permit the plaintiff to *767 perforin and transport in interstate commerce the goods contracted for, it is no defense that the contract sued on was void and unenforceable by reason of there not having been issued, before the-execution of the contract, a permit from the interstate commerce commission as required in section 209 of the act. The fact that the contract may have been partially completed by the actual transportation in interstate commerce on the public-highway of a portion of- the property contracted for without the-required permit having been obtained, can have no effect on the-legality of the contract as an executory contract entered into by the parties for the transportation in interstate commerce of property belonging to one of the parties, where this contract was made- and executed without there having been obtained the permit required under section 209 of the act. The evidence did not demand a verdict for the defendant on the ground that the contract sued on was illegal and unenforceable. The evidence authorized the verdict for the plaintiff, and the court did not err in overruling the defendant’s motion for new trial. Judgment affirmed. Felton, J., concurs.