Opinion
December, 1919.
Burlingham, Veeder, Masten Fearey, for motion.
Ernest P. Seelman, opposed.
On or about December 15, 1916, the defendant entered into an agreement with the plaintiffs for a good and sufficient consideration that it would furnish at Pier B, Jersey City, not later than Saturday morning, December 16, 1916, six freight cars for plaintiffs' use in shipping grapes over defendant's railroad to Iowa and other states. For the breach of this contract the plaintiffs have had a verdict for their damages. At the close of the evidence the defendant moved to dismiss the complaint, and for judgment against the plaintiffs upon the ground that the contract above stated was illegal and void, it being prohibited by the Interstate Commerce Act. The motion was temporarily denied with a view of taking the verdict and passing upon the question upon a motion to set the same aside. The opportunity afforded for a more careful examination of the question than was presented at the trial leads to the conclusion that the motion to dismiss the complaint and for judgment in defendant's favor ought to have been granted.
The plain reading of sections 1(b), 3, 6(a) and 6(g) of the Interstate Commerce Act (4 Fed. Stat. An.) prohibits a common carrier from making any special contract relative to its cars as facilities of interstate shipment that is not specified in tariffs filed with the commission. The defendant had not filed any tariff with the commission that provided for the contract made herein.
The following authorities condemn the contract under consideration, and it cannot be the basis of a claim for damages: Chicago Alton R.R. Co. v. Kirby, 225 U.S. 155; American Smelting R. Co. v. Union Pac. R. Co., 256 Fed. Repr. 737; Georgia, Fla. Ala. Ry. Co. v. Blish Milling Co., 241 U.S. 190; J.H. Hamlen Sons Co. v. Illinois Cent. Ry., 212 Fed. Repr. 324; Chicago, R.I. Pac. R. Co. v. Hardwick Elevator Co., 226 U.S. 426; Southern Ry. Co. v. Reid, 222 id. 424; Morrisdale Coal Co. v. Penna. R. Co., 230 id. 304; Southern Ry. Co. v. Prescott, 240 id. 632.
Motion granted.