McEachran v. Grand Trunk Railway Co.

Grant, J. (after stating the facts). At the conclusion of the evidence, plaintiffs’ counsel conceded the reasonableness of- the car-service rule, but claimed that payment of freight before delivery of the cars had been waived. The question of waiver is therefore the only one before us. Plaintiffs claim that this should have been submitted to the jury. The court held that there was no evidence to show authority in the employé, with whom Mr. McEachran talked, to waive payment. [320] The right of a common carrier to the prepayment of freight charges before delivery is important. When a party relies upon the authority of an employe of the carrier to waive that right, it is incumbent upon him to show authority. Plaintiffs relied upon an employe whom they did not know, and who was not employed in the office where such business was customarily transacted. If they had met some employe in the yard, they might as well have claimed that he had authority to extend credit by waiving payment. • We are not dealing «with a case where a party applies to the regular office, and there receives information from one who is apparently in a position to represent the company, But, under the plaintiffs’ own showing, there was no waiver. The conversation relied on to constitute a waiver is thus stated by Mr. McEachran: “I went there, and said that I had some wood there; and I said that I would give him a disposal order, and I wrote out the disposal order for the seven cars; and I said, ‘ I will send the amount of freight whenever I get the expense notices, and know the amount of freight.’ The disposal order was written in pencil. I kept no copy. I wrote out the order. I handed it to him, and he said, ‘All right.’” There is not in this language any promise, express or implied, to waive the rules of the company. Plaintiffs knew that prepayment was required, and that car rental would be charged after 48 hours. They had ample notice and ample opportunity to pay it within that time. Not a word was said about deferring payment. They had the 29th and 30th in which to pay and receive their property. Mr. Parker, the assistant cashier in the freight office, called plaintiffs by telephone on the 29th and 30th, and informed them that the check had not come, and that car rental would be charged on the 31st. There was no agreement that defendant should assume the risk of the mail, or that payment should be made by depositing the check in the mail-box. The reply of the employé, “All [321] right,” meant only this: “I will take your disposal order, and, when the freight charges are paid, will comply with it.” Judgment affirmed. The other Justices concurred.