Gulf, M. & N. R. v. Riverside Brick & Mfg. Co.

*508 Eti-iridge, J., delivered the opinion of the court. The appellant brought suit against appellee for freight charges on certain shipments of brick from the plant of appellee to points on appellant’s line of railroad. There was an error in the amount charged for freight on the said shipments, and suit was brought for the difference between the proper rate and the amount actually paid. During1; 1921 the appellee shipped certain cars of brick from its plant to its customers at Lucedale and Richton, Miss. The appellant collected from the consignees what was supposed to be the freight rates according to the amount indicated on the waybill. Afterwards it was discovered that the rates were incorrect, and the appellant, made demand on the shipper, the appellee, for the difference, which it refused to pay, contending that it was not liable, but that the consignees of said shipment should pay such rates. The case was tided upon an agreed statement 'of facts, in which it was admitted that the amounts demanded were correct as to the amount of proper charge, but it was not agreed as to who was liable. The appellant contended that the shipper was liable, while the appellee contended that the appellant should sue the consignees. The court below held in favor of the shipper, holding; that it was not liable under the facts above stated, but that the appellant should have sued the consignees. * . It is settled that, where errors are made in rates of freight that the company may and must demand of the shipper, the true rates properly fixed by the rate-making bodies — the interstate commerce commission in case of interstate rates, and the state railroad commission in case of intrastate rates. See Kansas City Southern Railway Co. v. Carl, 227 U. S. 639, 33 S. Ct. 391, 57 L. Ed. 683; Texas & Pacific Railioay Co. v. Mugg, 202 U. S. 242, 26 S. Ct. 628, 50 L. Ed. 1011; Lexington Compress & Oil *509 Mill Co. v. Yazoo & Mississippi Valley Railroad Co., 131 Miss. 49, 95, So. 92; Southern Railway Co. v. Buckeye Cotton Oil Co., 126 Miss. 562, 89 So. 228. We are of the opinion that the railroad company may collect from the shipper in such cases, unless there is an agreement between the railroad company and the shipper that the- company must collect from the consignee. In Coal & Coke Railway Co. v. Buckhannon River Coal & Coke Co., 77 W. Va. 309, 87 S. E. 376, L. R. A. 1917A, 663, it was held that a consignor who signs the bill of lading on his own account, and not as agent for the consignee, is liable to the carrier for the freight, although title to the goods passed to the consignee on delivery to the carrier. In the course of the opinion the court said: "Counsel contends that the words ‘owner’ and ‘consignee’ are synonymous terms, and refer to the consignee, who is generally also the owner. We do not think it necessary, to construe those terms, for; if it be granted that the construction contended for is correct, it was not the purpose of that section to relieve the consignor from liability on his contract. The bill of lading, together with the tariff schedule approved by the Interstate Commerce Commission, constitutes the contract, which was executed by defendant on its own account. It does not purport to be made by defendant as agent for the consignee. That section does not constitute the bill of lading a special contract, relieving, the shipper who signed it from liability for the freight charges. It was inserted for the carrier’s benefit, and is intended as notice to shippers of the carrier’s legal rights. Eegardless of that clause, the consignee, if owner, is; bound, by accepting the goods, to do all that clause requires him to do. But the carrier’s right to collect from the consignee does not imply a release of the consignor, in the absence of a special contract exonerating him. . The carrier may collect from either. Nor did the carrier’s waiver of its lien by delivery before payment of the freight release the consignor, there being no special contract. Wooster v. Tarr, 8 Allen (Mass.) 270, 85 Am. Dec. 707; 2 Hutch. Carriers, sec *510 tion 810. Both consignor and consignee were bound to plaintiff for the freight, the former on its express contract, and the latter on its promise implied by its ownership and acceptance of the coal.” The section referred to in the foregoing quotation was the section of printed conditions on the back of the bill of lading, which provided that: “The owner or consignee shall pay the freight and all other lawful charges accruing on said property, and, if required, shall pay the same before delivery. If upon inspection it is ascertained that the articles shipped are not those described in this bill of lading, the freight charges must be paid upon the articles actually shipped.” See, also, eases in case note and the L. R, A. report in this case, beginning at page 665, volume 1917A. Therefore the judgment of the court below will be reversed, and judgynent rendered here for the amount sued for, with interest from date of filing suit. Reversed, and judgment here. On Suggestion of Error. It is suggested in the suggestion of error that the decision in this case should be controlled by that of the supreme court of the United States, construing a similar contract, in the case of Louisville & Nashville Railroad Co. v. Central Iron & Coal Co., reported in 44 S. Ct. 441, 265 U. S. 59, 68 L. Ed. 900. We do not understand that there is any conflict between the decision in this case heretofore rendered by this court and the decision in that of L. & N. Railroad Co. v. Coal Co., supra. In that ease the Central Iron & Coal Company sold to Tutwiler &• Brooks ten carloads of coke, to be delivered f. o. b. cars at the seller’s' plant in Holt, Ala. Before delivery by the seller, the purchaser sold to the Great Western Smelters Corporation of Mayer, Ariz. Thereafter, under instructions from Tutwiler & Brooks, and upon their agreement to pay the freight, the Central Iron & Goal Company delivered at its plant the ears of coke to the *511 Louisville & Nashville Bailroad Company, directed the shipment thereof to Mayer, Ariz., over that railroad, and its connecting lines, and took bills of lading-, which it delivered immediately to Tutwiler .& Brooks. It will be noted that Tutwiler & Brooks agreed to pay the freight, and that the shipment was made for them as owners, instead of on behalf of the Central Iron & Coal Company. In the course of its opinion the supreme court of the United States (44 S. Ct. 443, 265 U. S. at page 67, 68 L. Ed. 903) said: “To ascertain what contract was entered into, we look primarily to the bills of lading, bearing in mind that the instrument serves both as a receipt and as a contract. Ordinarily the person from whom the goods are received for shipment assumes the obligation to pay the freight charges, and his obligation is ordinarily a primary one. This is true, even where the bill of lading contains, as here, a provision imposing liability upon the consignee. For the shipper is presumably the consignor, the transportation ordered by him is presumably on his own behalf, and a promise by him to pay therefor is inferred (that is, implied in fact), as' a promise to pay for goods is implied, when one orders them from a dealer. But this inference may be rebutted, as in the case of other contracts. It may be shown, by the bill of lading or otherwise, that the shipper of the goods was not acting on his own behalf; that this, fact was known by the carrier; that the parties intended, not only that the consignee should assume an obligation to pay the freight charges, but that the shipper should not assume any liability whatsoever therefor; or that he should assume only a secondary liability. In this case the bills of lading acknowledge receipt of the coke from the Central Company. But it did not sign them. Nor was it described therein as the consignor. There was no clause by which the shipper agrees expressly either to pay the freight charges or to guarantee their payment.” In the case before us the shipper was the consignor, and made the contract with the carrier, “which was *512 agreed to by tbe shipper and accepted for himself and his assigns.” Of course, the parties may agree that the consignee will be looked to for payment of the freight, and it is permissible so to contract. We did not hold that such contract could not be made, but that in the case before us the railroad company had the right to look to the consignor. The suggestion of error will be overruled. Overruled.