Shippers located on branch or lateral lines of a railroad are entitled to the same kind of treatment as accorded to those whose business is situated on the main line of the railroad. The shipper located on the branch line is entitled to be furnished cars without discrimination against him, for the reason that the railroad company has control over the branch lines as well as the main line of its railroad, and can send cars anywhere over its system. In Dickinson v. Robertson, 144 Ark. 515, 223 S. W. 12, it was held: "Where the evidence established that, owing to the exigencies of war, a carrier was unable during certain months to furnish the usual amount of cars to its shippers, but that it was able to fill 40 to 75 per cent. of the orders received for cars, proof that the carrier furnished only 22 per cent. of the cars ordered by plaintiff during those months justified submission to the jury of the issue whether the carrier had discriminated against plaintiff." Tested by the principles of law laid down in those cases it cannot be said that there is no evidence of a substantial character to warrant a verdict for the plaintiff. Two shippers of hoops and headings located at Des Arc testified that they shipped their products in box cars which were also used for the shipment of hay, and that during the months of July, August and September, 1920, they got practically all the cars that they needed. Other shippers of hay at Hazen, Ark., on the main line, testified that they practically got all the cars that they needed during these same months. Notwithstanding the testimony of the defendant's witnesses to the contrary, the jury had a right to accept as true the testimony of the witnesses for the plaintiff and it is fairly inferable from their testimony that there was no unusual car shortage during the summer and early fall of 1920. If they secured practically all the cars necessary for the shipment of hay at Hazen, the jury might have found that there was a discrimination against the plaintiff, in not sending cars over the branch line, 25 miles distant, for the purpose of shipping his hay. This view is strengthened when we consider that shippers of heading and hoops, who also used box cars in the shipment of products, obtained all the cars needed during this same period of time. It follows that the evidence for the plaintiff warranted a verdict in his favor, and the judgment will therefore be affirmed. Dock Company Held Not Required to Pay Twice for Installation of Machinery Fogh v. East Waterway Dock & Warehouse Co., Supreme Court of Washington, 221 Pac. Rep. 302 The plaintiffs, copartners engaged in business under the firm name of the American Can Cutting Co., entered into a contract with the defendant, the East Waterway Dock & Warehouse Co., whereby the can company agreed to open cans of oil imported from the Orient, and to transfer the oil into bulk for shipment and marketing in this country. The contract provided that the can cutting company should install the machinery necessary for opening and emptying the cans. It was also proIvided that if, within the six months during which the contract should be in ef Dock & Warehouse Co. Judgment for defendant, and plaintiffs appeal. Affirmed. Preston, Thorgrimson & Turner, of Seattle, for appellants. Chadwick, McMicken, Ramsey & Rupp and Stephen F. Chadwick, all of Seattle, for respondent. Judge Parker fect, the dock company should furnish Opinion of the Court, Written by less than 6,000,000 cans to be opened, that company would, at the end of the six-months' period, pay to the cutting company the original cost of installing the machinery less 15 per cent. During the six-months' period the dock company furnished less than 6, 000,000 cans. It, therefore, paid the cost of installing the machinery, in addition to the amount due the cutting company for services rendered in cutting the cans. The contract was extended for a further period of six months under a clause providing that such an extension might be made "upon all and singular, the same identical terms as are herein con- tained." During the additional period the dock company again failed to furnish 6,000,000 cans for cutting. At the expiration of the six months, the plaintiff's brought this action to recover the cost of installing the machinery less 15 per cent., contending that they were entitled to recover that amount under the clause of the contract quoted above. The court held that the dock company was not obliged to pay a second time for the installation of the machinery. It was held that that part of the contract had been fully executed and performed by both parties, since the cutting ompany had done all that it was required to do with reference to installing the machinery, and since the dock company had once paid for the installation thereof. A judgment for the defendant was affirmed. Action by Walter B. Fogh and others, copartners under the firm name of the American Can Cutting Co., against the East Waterway PARKER, J.-The plaintiffs, copartners under the firm name of American Can Cutting Co., seek recovery upon a contract entered into by them with the defendant, dock company, by the terms of which they were to render services to the dock company in the opening of cans of imported oil and of transferring the oil into bulk for shipping and marketing in this country. A trial upon the merits in the superior court for King county sitting without a jury resulted in findings and judgment denying to the cutting company any recovery, from which they have appealed to this court. Our problem is one of construction of the contract, or rather of the renewal of it. The facts are not in dispute and may be summarized as follows: On October 28, 1918, the cutting company was the owner of an invention consisting of certain machinery and a process by the use thereof for the cutting open and emptying of cans of oil and for the crushing and baling of the empty cans. The dock company was engaged in the business of operating a dock at Seattle at which were received oils imported in cans from the Orient. While it was seemingly necessary to put the oil in cans for shipment by water, it was evidently more efficient to have the oil transferred into bulk for shipment and marketing in this country. On October 28, 1918, the contract here to be considered was entered into between the cutting company and the dock company. After general introductory recitals in the contract evidencing generally its purpose, its terms, in so far as we need here notice them, are as follows: "It [cutting company] will install and equip the necessary heating coils and sluicing pipes, and other appurtenances, in the dumping tables furnished for that purpose by the dock company; the number of dumping tables so to be equipped to be sufficient to handle the oil that comes to the dock for such handling. This equipment and installation of coils, pipes and appurtenances, other than the dumping tables themselves, to be at the expense of the cutting company, provided, that during the six-months' period covered by this contract the cutting company is furnished by the dock company with not less than six million cans of oil to be cut and emptied. If during such six-months' period the number of cans so furnished by the dock company for that purpose is less than six million, then in such event, at the end of such six-months' period, the dock company shall pay the cutting company the original cost of installation and equipment of the necessary heating coils and sluicing pipes and other appurtenances thereto; less fifteen (15) per cent. of the same. The cutting company shall furnish the dock company with the invoices copies of same of material and labor procured in such installation or equip ment within five days following the receipts of same so that the dock company have an opportunity to check the same if it should so desire. or "The operation under this contract shall commence on the 15th of December, 1918, and shall continue for a period of six months thereafter. . . "During the six-months' period covered by this contract and if this con tract shall be renewed or be modified and renewed for an additional period of not less than two and one-half (2) years, then during the period covered by such renewal, the cutting company will not use or so far as lies in their power, permit to be used their machines or process on Puget Sound for or by any other company or person than the dock company. are "It is further mutually agreed: That the dock company may have an extension of this contract for an additional period of six months upon all and singular, the same identical terms as herein contained, provided notice of the intention to elect to have such extension shall be given to the cutting company not later than May 15, 1919." The installing of the equipment and operation thereof and the work contemplated were proceeded with by the cutting company, the dock company paying for such services from time to time at so much per can as agreed upon. During the original six-months' period specified in the contract, there were furnished by the dock company only 1,028,065 cans to be cut, emptied and crushed by the cutting company. That being less than 6,000,000 cans, the cutting company thereby became entitled, to receive from the dock company the cost of installing the equipment above noticed in the first-quoted paragraph of the contract, less 15 per cent. This was found and agreed by the parties to be $7,549.52, and was in due time paid by the dock company to the cutting company in addition to the agreed compensation per can for the services rendered by the cutting company. On June 17, 1919, the dock company gave to the cutting company notice of its election to have the contract extended for another six-months' period. While this was after the time for giv ing such notice as specified in the contract, the cutting company accepted it as being timely given and proceded with the work accordingly. During the second six-months' period there were furnished by the dock company, and cut, emptied and crushed by the cutting company, 2,022,464 cans, for which services the dock company paid the cutting company the agreed price per can. At the end of the second six-months' period, the dock company having furnished less than 6,000,000 cans, the cutting company again demanded payment for the cost of the installing of the equipment specified in the first above-quoted paragraph of the contract, less 15 per cent., to wit, $7,549.52, recovery of which is sought in this action. The claim of the cutting company is rested upon the theory that the last above-quoted clause of the contract, providing for its extension of an additional six-months' period, and the extension of the contract accordingly, constitutes, in effect, a new contract as if originally entered into at the beginning of the second sixmonths' period, accompanied by the installing of the equipment by the cutting company specified in the first above-quoted paragraph of the contract as of that time. Counsel for the dock company rely particularly upon the language of the last abovequoted paragraph of the contract that such extension was intended to become "upon all and singular, the same identical terms as are herein contained." We have but little trouble agreeing with this contention in so far as the contract remains executory; that is, in so far as further duties and obligations are to be performed according to its terms after the beginning of the second six months. But it seems quite plain to us that as to compensating the cutting company for the installment of the equipment specified in the first paragraph of the contract above quoted, to the extent of the cost of such equipment, less 15 per cent., that portion of the contract has wholly ceased to be executory, but has, in all things in that respect, been fully executed and performed by both parties; the cutting company having done all that it was required to do in that respect, and the dock company having paid all that it was required to pay with reference to the installing of such equipment. Plainly, we think the cost of the installing of the equipment, less 15 per cent., was not under any circumstances intended by the parties to be paid for a second time. Some contention is made in behalf of the cutting company that the trial court erred to its prejudice in excluding certain evidence offered in its behalf upon the trial. We deem it sufficient to say that it seems plain to us that this offered evidence would, if received and given the effect claimed for it by counsel for the cutting company, work a variation of what seems to us the plain terms of the written contract; and was, therefore, properly excluded. The judgment is affirmed. VOL. 3 B JOHN EDSON BRADY, Editor APRIL, 1924 A Lesson in Letter Writing No. 4 USINESS correspondence is not the appropriate place for drollery. If one must be waggish at the expense of another, the impulse to incorporate the witty remarks in a business letter should be resisted. This is particularly true where the writer is in the employ of another person or a corporation. The reason is that the responsibility for any unpleasant results may be thrown upon the employer. Such a situation is found in the case of Berry v. City of New York Insurance Co., 98 S. E. Rep. 290, recently decided by the Supreme Court of Alabama. P. H. Hoffman was a special agent of the defendant insurance company. He had known the plaintiff, Berry, who was also an insurance agent, about eight months, when Berry sustained a fire loss. Berry held a policy in the defendant company, and it became Hoffman's duty to write to Berry concerning an adjustment. In the course of his letter he took occasion to observe, playfully: "You must need the money, otherwise there would have been no occasion for the fire." Berry took exception to this remark and sued the insurance company for damages for libel. It was held that the company was not liable in damages. The reason was that the remark, in the circumstances in which it was made, did not constitute libel. The letter which Hoffman wrote to Berry reads as follows: Jacksonville, Fla., July 13th, 1921. Mr. T. R. Berry, Russellville, Ala. Dear Tom: Loss: No. 20108 Berry. Your wire, your notice that your furniture had been destroyed, came in due course-adjustment being referred to the Southern Bureau at Birmingham, with request that they give same as prompt attention as possible, as you must need money, otherwise there would have been no occasion for the fire. They will probably send Cotter up to see you. Please show him a good time. With kindest regards, remain, Sincerely, P. H. Hoffman, Special Agent. |