Wabash Railroad v. Lannum

Mb. Presiding- Justice Boggs delivered the opinion oe the Court. The argument in support of the first ground upon which a a reversal is asked is that the rate of thirty-one cents per hundred pounds from Bruce to New York, agreed upon by appellee and appellant’s agent is less than the rates fixed by the Inter-State Commerce Commission to be charged by all roads for such service, which is thirty-three cents per hundred pounds, and that for that reason the contract was unlawful under the inter-state commerce commission act, which forbids and declares unlawful contracts granting special rates to shippers. The amount charged upon the way-bill and paid by appellee in addition to the charges of the Delaware, Lackawanna & Western Bailroad Company for handling and transporting the cattle from East Buffalo was $194.60. This, as counsel for appellant company admits (page 19 of his brief), is at the rate of a fraction more than thirty-five cents per hundred for the proportional distance from Bruce to Buffalo, or about two cents per hundred pounds in excess of the rate fixed by the schedule adopted by the Inter-State Commerce Commission, but counsel insist, or rather suggest, for there is no proof upon which to base an insistence, that the excess consists of the costs of loading and reloading the cattle at Buffalo. We can not adopt the suggestion in the absence of proof, and if we are correct in the view hereinafter expressed as to the right of appellee under the contract, the costs of unloading and reloading the stock at Buffalo should not be cast upon him, and as the amount thereof was added to his freight bill and collected from him it was proper he should be awarded judgment therefor against the appellant company. The second ground urged for reversal is not tenable. The writing signed by Logan, appellant’s agent, .and delivered to appellee may be resorted to to determine the duty and obligation of the appellant company and its connecting carriers, its agents. This writing, construed in the light of the testimony, proper to be considered in connection with its construction, constituted an undertaking on the part of the company that the cattle should, if the appellee so desired, be transported to Buffalo and there delivered at the stock yards to which the appellant company, or its connecting carrier, usually delivered stock which was intended to be placed upon the market for sale in that city. Counsel, however, urge the instrument called “ Live Stock Shipper’s Contract,” which the appellee signed at Sullivan, while en route with the cattle from Bruce to their destination, is to be resorted to to determine the respective duties and obligations of the parties. We think nob. The appellee ordered, and the appellant company furnished, cars for the cattle under the other contract. The cattle were delivered by appellee for shipment, received by the company and shipped by it under such other contract. While en route and while the train in which the cattle were being carried was stopped at the station at Sullivan, an agent of the company presented another written contract and requested appellee, who was accompanying the cattle upon the train, to sign the same. He did so under protest and at the same time questioned whether it correctly and fully set forth the contract. He had but little time, before the train was again on its way, in which to express himself with relation to it, but we think it appeared from the testimony he said quite enough to make it clear he did not assent to its terms, and that he only signed it for the purpose of securing the necessary papers to enable him to ride free upon the trains of the company and its connecting carriers. It can not be questioned the writing first signed by the agent at Sullivan, and under which the cattle were delivered and received and shipped, and under which the appellee rode on the train from Bruce to Sullivan, contemplated and included the free transportation of the appellee upon the train with the cattle. The actual agreement under which the cattle were shipped was that consummated between the parties before the stock was delivered into cars of the company at Bruce, and as it did not appear the appellee ever assented to another contract or consented to any change in the terms of the actual contract he can not be deemed concluded by the terms of the writing signed by him at Sullivan. Mer. Des. Trans. Co. v. Furthmann, 149 Ill. 66. We therefore hold the appellee was entitled to recover damages from the appellant company for the failure of its connecting carrier to unload the stock at the central yards at East Buffalo. It would follow from what has been said we do not think the terms of the live stock shipper’s contract by which, among other things, it was provided the appellant company liable should not be deemed responsible for any damages or injury occurring after the cattle should be delivered to a connecting carrier, and that claims for any damage or injury should be filed with the company within the time fixed by such contract have any binding force as against the appellee. Our conclusions expressed as to the first and second grounds are applicable to and fully dispose of all urged in support of the third ground. The judgment must be and is affirmed.