St. Louis, Southern Railway Co. v. Spring River Stone Co.

ROBERTSON, P. J. Plaintiff sued defendant in the circuit court to recover $323.12 from defendant and based its claim thereto on the following facts: In 1908 defendant was operating a stone quarry at Carthage, Missouri, and was negotiating with one J. B. Hoffman of Ft. Worth, Texas, for the sale of five cars of stone to be delivered to Hoffman at Ft. Worth. Defendant called upon the commercial agent of the plaintiff for a quotation of freight rates and received' a quotation of 27% cents per hundred pounds on cars of 50,000 pounds minimum capacity, the agent designating the St. Louis [115] & San Francisco Railroad Company, which, had a station and freight office at Carthage, as the initial carrier. Upon this information the defendant quoted Hoffman a price on five 50,000-Ib. cars of stone to be delivered at Ft. Worth. This offer was accepted and the defendant company ordered 50,0004b. cars in each case, but not having that capacity accessible the railroad company furnished in each case cars of greater marked capacity than were ordered by the defendant. Defendant loaded the stone and estimated the weight, according to its dimensions, which was approximately correct, but as the railroad company had no facilities at Garthage for weighing the cars they were not weighed by the railroad company until they reached Monett en route to their destination. The correct weight was slightly in excess of the estimated weight. The shipments were made between November 30, 1908, and December 29 of the same year and when the shipments reached the destination plaintiff attempted to exact freight according to the marked capacity of the cars instead of according to the capacity ordered, though in fact the amount paid by the defendant corresponded neither to the actual nor the estimated weight of the shipments and was $30.52 less than the freight would have amounted to upon the marked capacity of the cars. On February 4, 1909, before defendant knew the actual weight of the shipments, it made a written demand upon the claim agent of plaintiff for $287.78 overcharge, giving the estimated weight. After making this claim the defendant on February 6, 1909, after learning the correct weight of the cars, reduced its claim to $263.73; and thereafter the .commercial agent of the plaintiff went to Carthage, made a full investigation and soon thereafter the defendant was paid $270.60 on account of the supposed overcharge. The plaintiff bases its right to recovery in' this case upon the theory that the act of Congress, commonly called the Interstate Commerce Act, to regulate [116] commerce and the tariffs and schedules filed in obedience thereto, fixed the rate on this character of shipments at 27 ■§ cents per hundred pounds when the cars ordered and used were loaded to their capacity, but that by virtue of a rule then applicable in this territory that when the carrier could not furnish a car of the capacity ordered by the shipper and for its own convenience provided a car of greater capacity than the one' ordered by the shipper, it might use this car on the basis of the minimum carload weight fixed in the tariff applied on the size of the car ordered by the shipper,-but in no case less than the actual weight, the capacity of car ordered, number of the order and date of same to be shown in each instance on the bill of lading and the carrier’s waybill, and that in this instance the required notations were not made on the waybill nor on the bill of lading and that, therefore, the plaintiff in the first instance should have collected 27 cents per cwt. on the marked capacity of the cars. It was conceded at the trial by plaintiff’s counsel that when the defendant made its. claim for the rebate and when the plaintiff adjusted and paid it that there was no intention upon the part of either of them to violate the law. The trial below was to a jury and at the conclusion of the plaintiff’s testimony the court directed a verdict in favor of the defendant. There is no controversy here as to the facts material to a decision of this ease. In the ease of State ex rel. v. Ewing, 116 Mo. 129, 22 S. W. 785, an action was brought upon the official bond of the county collector to recover certain sums retained by him on settlements for commissions in excess of what was due him under the law. The defendants in that case, as in this, pleaded the settlements in bar, and a.t the conclusion of the testimony the court directed a verdict for the defendants. That case in principle is not different from this. The facts in that [117] ease were that the county collector had charged and withheld greater commissions on sums collected than he was allowed by law, but the contention in behalf of the county was that as the commissions had been allowed by the county court upon a settlement with it contrary to law the defendants could not plead settlement. The defendants’ contention was that notwithstanding the collector was allowed by the county court upon a settlement more by way of commissions than he was entitled to receive, the settlement with the county court had the binding force and conclusiveness of a judgment and could only be attacked by a direct proceeding in equity on the ground of fraud or mistake. This contention was ruled against the defendants and. it was held that the settlement could be inquired into and mistakes corrected in like manner as between individuals acting in their own behalf, and it was held that the settlement was binding on the county. A similar case is also found in State ex rel. v. Shipman, 125 Mo. 436, 28 S, W. 842. In the case of Corbin v. Adair County, 171 Mo. 385, 71 S. W. 674, the circuit clerk undertook to recover fees paid by him into the county treasury under a mistake of fact, to which he was as a matter of law entitled at the time of his payment, but the court held that his action could not be maintained. To the same effect also is the opinion in the case of Hethcock v. Crawford County, 200 Mo. 170, 98 S. W. 582. "While it may be true, as contended by plaintiff, that the parties to this litigation could not have entered into a binding agreement for a different rate from that fixed by the rules, tariffs, etc., under the act of Congress, nevertheless they have settled, as between themselves, their respective civil liabilities on account of the shipments, and it is. as essential in this case as in the cases where public officials received more than they were entitled to by law, that the right of controversy between the parties be foreclosed by their settlement; [118] and it is our duty to follow the decisions of the Supreme Court. The judgment of the circuit court is affirmed. Sturgis, J., concurs in the result in a separate opinion. Farrington, J., dissents in a separate opinion.