LIBRARY OF THE. UNIVERSITY OF CALIFORNIA LEGAL DECISIONS AND OPINIONS. SUPREME COURT OF MASSACHUSETTS, MILLER MANSFIELD, AGENT HOUSATONIC R. R. CO. This is a case where a car load (containing one hundred barrels) of flour was placed for delivery on the tracks of the Housatonic R. R. Co. at Great Barrington, Mass., on Feb. 14th, 1872, and the consignee was notified on the same date that he would be allowed 24 hours in which to unload the car, and that the charge after 24 hours would be $2.00 per day for demurrage. The consignee was aware of the arrival of the car, but deferred unloading until the 20th of February, when he tendered the agent the amount of freight charges, but declined to pay the demurrage. The agent refused to permit of the car being unloaded and held the flour as a lien for the charges. Subsequently the consignee paid all charges under protest and removed the flour and then brought suit in the District Court, before a jury, for damages. The case was decided in his favor. It was appealed by the Railroad Co. and the following is the opinion of Justice Morton, of the Supreme Court of Massachusetts: "For the purpose of this hearing all the facts which the defendant offered to show are to be taken as estab lished. We must assume, therefore, that there was an existing regulation and usage of the Housatonic R. R. Co. that car-load freight, like that of plaintiff's, should be unloaded by the consignees within 24 hours after notice to him of their arrival; that for delay in unloading after 24 hours the consignee should pay $2.00 per day for each car belonging to other Railroad Companies, and that this regulation and usage was known to the plaintiff." Being known to the plaintiff it is to be presumed, in the absence of any evidence to the contrary, that the parties contracted in reference to it. It enters into and forms part of their contract, and the Railroad Company is entitled to recover the amount fixed by the usage, by virtue of the plaintiff's promise to pay it. This charge is, in its essential character a charge for storage. After the arrival of the goods at their destination the liability of the Company, as common carriers, ceased, but they became liable for the custody of the goods as warehousemen, and, if they were not removed within a reasonable time, were entitled to compensation, for which they had a lien as warehousemen. "Norway Plains Co. vs. Boston & Maine R. R., 1 Gray, 263." The parties by their agreement, fixed the rate of compensation which the company should receive and the time when it should commence. It is not material that the goods remained in the car instead of being put into a storehouse. The responsibility of the company for their custody was the same as if they had been stored, and they had the right to retain them until their charges were paid. We are of the opinion, therefore, that instructions. should have been given (in the District Court) substantially as requested by the defendant, and that the presiding judge erred in the instructions which he gave." THE CHICAGO, BURLINGTON & QUINCY R. R. CO. OPINION OF PHILLIPS, COMMISSIONER. No reason is perceived in law or justice why any unreasonable and unnecessary detention of cars by consignees should not be paid for. Car demurrage is an important subject which has arisen in a practical way only within late years, and long after our statutes for the regulation of railroads was passed. It does not, however, follow that because there is no statutory regulation of the question, there is no law. MAGISTRATES' COURT, COLUMBUS, O., FRANK E. POWELL VS. P. C. C. & ST. L. RY. CO. This is an action of replevin brought by the plaintiff to recover of the defendant the possession of a car load of lumber which he claims is unlawfully detained from him by the defendant. The parties have waived all technical questions and ask that the case be decided solely on the merits of the real controversy between them. The real question at issue is the right of the railroad company to demand payment of the so-called car service charges as a lien on the property and to hold the lumber until these charges are paid. This is an important question and has excited considerable attention. It affects the rights of all the railroad companies and of every merchant or dealer receiving freight by the car load, and should be settled beyond legal controversy for the interest of all parties · concerned in shipping goods. The facts are not controverted. Mr. Powell bought a car load of lumber in Michigan of a lumber company there, to be delivered to him on board the cars at Kalkaska. The lumber company duly delivered the lumber to the railroad company there, receiving a bill of lading in the usual form, signed by the agent of the railroad company. The bill of lading was not sent to Mr. Powell by the lumber company until after the suit was commenced, when Mr. Powell wrote for it, and it was then sent to him. The lumber arrived here somewhere from the first to the third of November, and on the latter day Mr. Powell received notice by postal card of its arrival. He did not send his teams for the lumber until more than forty-eight hours after receiving the notice, and when the teams arrived no objection was made to delivering the lumber, on account of Mr. Powell's not having the bill of lading, but the drivers were informed that there was $1.00 car service charges which would have to be paid before delivering. Mr. Powell refused to pay, and from time to time thereafter demanded the lumber, but the railroad company always refused to deliver it to him unless he paid the car service charges of $1.00 per day for every day the car was detained after the forty-eight hours. The matter remained in this condition until December 11th, when plaintiff brought this action and got possession of the lumber by writ of replevin. The car was thus detained on the tracks of the company thirty-three days after the forty-eight hours, not counting Sundays or legal holidays. The bill of lading, among other terms and conditions, contains the following: "-Fifth-Property not moved by the person or party entitled to receive it within twenty-four hours after its arrival at destination, may be kept in the car, depot or place of delivery of the carrier, at the sole risk of the owner of said property, or may be, at the option of the carrier, removed or otherwise stored at the owner's risk and cost, and there held subject to lien for all freight and other charges. The delivering carrier may make a reasonable charge per day for the detention of any car, and for the use of track, after the car has been held forty-eight hours for unloading; and may add such charge to all other charges hereunder, and hold said property subject to a lien therefor." The plaintiff claims: First-That the contract was one which a common carrier (railroad company) has no authority to make. Section 3838 of the Rev. Stat. is as follows: "Section 3838 (common carrier companies). A corporation organized as and for a common carrier company shall have the following powers: 1. To make all contracts that it shall be lawful for natural persons to make for the carriage of persons and the storage, forwarding, carriage and delivery of property, but subject to the same liabilities." As there was nothing immoral in the contract and nothing prohibited by any statute, and the contract was plainly within the scope of the railroad company, we see no reason why the contract was not one which the railroad company was authorized to make. Second-The plaintiff further claims that there is nothing in the contract which gives the railroad company the right to claim a lien on the lumber for the car service charges. A part of the bill of lading, above set forth, reads as follows: "The delivery carrier may make a reasonable charge per day for the detention of any car, and for the use of the track after the car has been held fortyeight hours for unloading; and may add such charge to all other charges hereunder and hold said property subject to a lien therefor." This seems about as plain as language can make it, and if the contract is binding on the parties, it clearly means that the railroad company |