Central of Georgia Railway Co. v. Eatonton Lumber Co. , 14 Ga. App. 302 ( 1914 )

Russell, C. J.

1. This case is controlled by the rulings of this court in Georgia Railroad v. Creety, 5 Ga. App. 424 (63 S. E. 528), and Central Railway Co. v. Willingham, 8 Ga. App. 817 (70 S. E. 199) ; and under the agreed statement of facts, a verdict in favor of the railway company was demanded.

2. Section 2640 of the Civil Code has no application to a suit brought by a railway company +0 recover the difference between the amount actually collected as freight and that which should have been collected under the rules of the State railroad commission; and such a suit would not be barred if brought within four years from the accrual of the right of action.

3. A railway company is not estopped to proceed against a consignee to recover the difference between the amount of freight collected and that which should have been collected, merely because of delay in bringing suit, not extending beyond the period prescribed by the statute of limitations, and because during that time the consignor (who by agreement with the consignee was liable for the freight) became insolvent.

Decided January 27, 1914.

Certiorari; from Putnam superior court — Judge James B. Park. September 18, 1913.

M. F. Adams, for plaintiff. W. F. Jenkins, for defendant.

4. The trial court erred in overruling the demurrer to the plea, and the judge of the superior court erred in not sustaining the certiorari and rendering a final judgment in favor of the plaintiff. Judgment reversed.