Gulf City Construction Co. v. Louisville & Nashville Railroad , 121 Ala. 621 ( 1898 )

TYSON, J.

— The appellant by this suit sought to recover of the defendant three hundred and eighty dollars which it paid to defendant for car service. It appears without dispute that the plaintiff had notice of the arrival of the steel rails, bars and spikes transported by the defendant and knew of the rule of the Oar Service Association requiring the defendant to make a charge for this car service, in the event the freight was not taken or received by plaintiff within forty-eight hours after such notice. It is also undisputed that these notices were copies of the freight bills and there was an error in each of them in the amount of the freight charges. That plaintiff called the attention of the defendant’s agent to these errors, and that he promised to examine into them and have them corrected.

The matter of error in these notices is the excuse which the plaintiff offers for not paying the bills and receiving the freight. It is not shown that it tendered the amount really due defendant, which was known to its agent having the matter in charge. But knowing it was chargeable with this car service if accrued and the defendant Avould require its payment for the Alabama Oar Service Association before delivering the freight, it declined or failed to receive the freight and pay the charges, and permitted the demurrage charges to accrue.

It was also known to plaintiff’s agent when it paid these charges that defendant would not refund it, without the consent of the Car Service Association, to whom the money belonged. On this point we quote the language of tbe witness,- plaintiff’s agent, .on cross-examination:- “P bad paid car service on [these] former shipments at the same rate per day that was charged us on this shipment and when 1 did pay said car service I made application-for a refund of it to the L. & N. Railroad Co. the.defendant. I understood, however, that my application would be forwarded to the Alabama Car Service Association and be passed on by it.” To avoid the effect of this testimony, it is argued by appellant’s counsel that because the defendant’s agent said on the day this payment was made by it, that it “wouldn’t have any trouble in getting the |380 back,” that it was induced to make the payment. At best, this Avas but an expression of the opinion of the agent as to Avhat action the Car Ser-Adce Association would take upon the application to refund the money. Besides, it does not appear that the opinion Avas expressed before the-plaintiff parted with the 'money, but on the contrary, the verbiage' of the bill of exceptions on this point clearly indicates that it was a statement made by him after its payment. But Avhether made before or contemporaneously with the payment, if construed as a statement of a fact, it cannot bind the Alabama Car Service Association to Avhom the money belonged in the absence of fraud, it not being shown that the agent making it had any authority to do so: In the absence of any proof of a tender of the amount admittedly due by it on these freight bills or a refusal by defendant at any time after demand to de-' liver the freight, taken in connection Avith the affirmative proof that plaintiff did-not make a request of the" defendant to deliver it and made this phyment to the defendant as the agent, of the Alabama Car Service Association subject to the action of said association to refund it, which- the association declined to do, the payment was voluntary and cannot he recovered back.-Raisler v. Mayor & Council of Athens, 66 Ala. 194; Town Council of Cahaba v. Burnett, 34 Ala. 400; Cachet v. McCall, 50 Ala. 307.

The charge was not an illegal one, nor shown to have been incorrect in amount, nor is the rule requiring the plaintiff to receive the freight within forty-eight hours after notice an unreasonable one, and therefore not within the influence of the principles announced in the case of Mobile & Montgomery Railway Co. v. Steiner, 61 Ala. 559, where the charges were not only excessive but in plain violation of the provisions of a statute. Had the plaintiff desired to free itself of these demurrage charges, it could have tendered the amount known to it to be due defendant as freight charges and demanded a delivery of the rails, etc. In such case, if defendant had declined to receive the amount tendered and refused to deliver the rails, doubtless it would not have been entitled to collect for the Car Service Association the de-murrage charges and if plaintiff had then been compelled to pay these charges in order to get possession of the rails, the payment would have been compulsory. — 18 Am. & Eng. Eney. Law, p. 222 and notes.

In addition to what we have already said there is another reason perhaps more conclusive against plaintiff’s right to recover. It appears that the money in controversy was paid to the defendant as the agent of the Alabama Car Service Association and this fact was known to the plaintiff when the payment was made. The defendant being merely the agent for its collection, could not be made liable, its principal being known to plaintiff, in the absence of fraud, or want of authority to bind his principal. There is not a single fact in the record from which either fraud or want of authority can be inferred in the remotest degree.—Comer v. Bankhead, 70 Ala. 496; Roney's Admr. v. Winter, 37 Ala. 278; Bell v. Teague, 85 Ala. 233; Drake v. Flewellen & Co., 33 Ala. 106.

The plaintiff failing to make out a prima facie case, . there was no error in the action of the court, on motion of defendant, in excluding the testimony offered and giving the affirmative charge requested in writing by the defendant.-Talladega Ins. Co. v. Peacock, Admr., 69 Ala. 253.

Judgment affirmed.