McNees v. Missouri Pacific Railway Co.

Hall, J. The court properly denied the motion to make the petition more certain and definite. The petition alleged everything material to the plaintiff’s cause of action. That was sufficient. It was immaterial whether the contract alleged in the petition was verbal or written. The contract was alleged. That allegation would have been sustained by proof of either a verbal or a written contract. It was not necessary to set out the evidence in the petition. It was not necessary to allege in the petition that the ■contract was made by the defendant through an agent, or who that agent was. The allegation that defendant made the contract was sufficient. It was not necessary to state the facts or circumstances by which the contract would be proved. See v. Cox, 16 Mo. 166; Saunders v. Anderson, 21 Mo. 402 ; Bliss on Code Pleading, sect.- 207. It was alleged that the contract continued for the period of time named in the petition, from July 1, 1882, [234] to December 81, 1882. It was immaterial whether the contract did or did not continue beyond that time. It was not necessary, therefore, to allege for what length of time the contract was to continue. It was alleged that the contract applied to the stations on defendant’s railroad named in the petition. It was immaterial whether the contract did, or did not, apply to other stations. Therefore, it was not necessary to allege all the stations to which the contract applied. It was not necessary to allege the number of carloads of wheat and of oats shipped by plaintiff from any of the stations named in the petition. The number of car loads might have been material in ascertaining the amount due for freight from plaintiff to defendant, but it was wholly immaterial, so far as concerned the amount of drawback or rebate to which plaintiff was entitled. That depended upon the number of pounds of grain actually shipped by plaintiff, because the rate of rebate was so much per hundred pounds on grain shipped. This action was brought to recover such rebate. It was alleged that the grain was all shipped between July 1, 1882, and December 31, 1882. We can see no reason for any greater particularity in the allegations of the petition as to the dates of the shipment. Besides, that matter was peculiarly within the knowledge of defendant. Bliss on Code Pleading, sects. 309, 310. II. The .court properly denied the motion to elect. There was but one cause of action stated. There was one contract. The amounts of the rebate on the shipments from the several stations were but items of the aggregate amount due upon the whole contract. Bliss on Code Pleading, sect. 118. III. The demurrer was properly overruled. 1. The shipment of the grain by plaintiff was a suffi [235] cient consideration to support the contract, on the part of the defendant, to return to plaintiff the rebate. 2. The contract was not illegal and void. It was not within the prohibition of Bevised Statutes, section 815, or section 821. Neither was it within the prohibition of the common law against any distinction or discrimination being made by a common carrier in favor of one against another. It was not a discrimination against any one for the defendant to agree with plaintiff to charge him less than the regular tariff rates. The regular tariff rates were fixed and known. By the contract, by means of a rebate, the plaintiff was to be charged less than those rates, but wholly without regard to what others were to be charged. The object of the contract was not to discriminate against any one, but was-simply to give to plaintiff a rate less than the fixed and regular rate. By the contract no discrimination was made between the plaintiff and others. Under the contract, the defendant might not only have charged every one the same rate given to plaintiff, but even a rate less than that rate. To charge one a rate less than the regular fixed rate is not discrimination. But to charge one a higher rate than the lowest rate given to any one else, under certain circumstances, is discrimination. Borer on Bailroads, 1227, 1375; Stewart v. Lehigh Valley Railroad,, 38 N. J. 505. Bevised Statutes, section 821, would seem to have no-application to this case. Bevised Statutes, section 815, seems to cover this case. It is sufficient to say, however, that no discrimination or distinction whatever was made- or attempted by the contract pleaded. The judgment is affirmed. All concur.