
    NO. 8931
    COURT OF APPEAL PARISH OF ORLEANS
    EQUITABLE EQUIPMENT COMPANY VERSUS MERCHANTS RAILWAY TRAFFIC ASSOCIATION LTD.
    
      
    
   Dinkelspiel; J

Plaintiff institutes this suit averring that defendant is a corporation under the laws of this state, s.nd doing business in this city, ünder.a contract annexed to the petition de-endant was to furnish plaintiff rate quotations on shipments when requested; averring further that on December SSnd, 1931, plaintiff requested defendant to furnish proper rate of shipment of 130368 gross1 tons of relay rails from Indian Village, Douieie.no, to Manning, Texas, and defendant quoted the rate at $6.83 per gross ton; alleging that relying on defendant's quotation as correct, plaintiff sold to the Carter-Kelley Lumber Company, 130268 gross tons of.relay rails at the price of $32.83 per gross ton, which was basea on the quotation of $6.83 furnished by defendant. That on .the arrival of the shipment at Manning, Texas, the oarrier demanded a freight rate of $9.18 per gross ton, which plaintiff was compelled to pay before equipment would be released to consignee. That a demand was made by phone to the defendant company, who replied assuming the responsibility of the difference in freight and ecaknaisiEdg acting on this plaintiff paid .the difference, $2,35 per gross ton, and therefore defendant; was liable for the s.um of $305.75. That remitting the $5.75 suit was instituted for $300.00 in order to give the Court jurisdiction.

Defendant answered admitting all the allegations of plaintiff's petition, but piaÉdxihxkxkhaxdafaKdxnt deny that there had been a breaoh of obligation and that under -the contract defendant had sstexadm rendered the plsdntiff services in this instance, just as it had been doing all along in the course of their business dealings and s.lleging further that the servioes rendered were not paid for, hence defendant was not liable.

On these issues the parties went to trial, and we find from the record, the -testimony of Charles tí. Skinner, who was the s-uditor and office manager of plsdntiff. Plaintiff offered in evidenoej the contrsot in question, together with two telegrams from the Carter-Kelley Lumber Company and In reference to the telegrams the witness was a.sked:

Q. Mr, Skinner, will you tell saaxinxjCEa the court in your own words .what happened prior to the exchange of these two telegrams as far as the defendant was concerned? A. We called up the Merchants Railway Traffic Association Ltd. for a rate on relay rails from Indian Village, Louisiana, to Manning, Texas, and were qxx quoted-a rate of 30§í per one hundred lbs} we ohecked these rates back with the railroad company afad they advised us that the rate is was $9,18 per gross ton.
Q. What does ths.t 30^ per 100 lbs. correspond to? A. |6.83 per gross ton, and to make our quotation to the Carter-Kelley Dumber Company correct, we took this matter up with the Traffic Association advising them that the railroad did not check the same rate that they did and thev assured us that: the rate of $6.83 per gross ton was correct -and we accordingly made our quotation based on this rs,te.
Q. If you had been quoted fcx any other Bate would you have quoted a different nrioe? A. Absolutely.
Q. Tour prioe to the consignee would have been based on the quotation furnished by defendant? A. Yes sir-

He further testified that immediately upon xsssixing learning from- the CarteruKelley Lumber Company, the fact that the carrier would n8t deliver on the rate quotation of $6.83, jíísxkc •plaintiff called up the defendant, 'telling them just what had happened; that the railroad refused to aooept the ¿bíe freight on the casis given by the defendant, bptt Insisted on the higher basis, or in other words, f0.18; plaintiff then aavlsed the uartsr-Kelley Lumber Company to pay- the freight and they would be reimbursed for any loss sustained, within ninety days.-

The -telegrams In question, the one .addressed to the Carter-Kelley Dumber Company, January 19th, 1922, reads as follows;

aTour wire advising rate $9.18 gross ton. Do not pay this amount-for our account, oorreot rate $6,83 gross ton; .protect will wire ha.ok -tty jaraacttgt draft to take care difference in weight.
Signed by plalntur".

Subsequently the Carter-Selley Dumber Company wired:

"Sailrond refuses to reduce rata, advise reduction in iraft or advise disposition of rail.
Signed by the Carter Kelley Lumber Co."

We find further a letter addressed to plaintiff by defendants, of dare January 20th, 1933:

“Referring.to phone message of your Mr. Cleveland, if you will advise payment of the fregith.bill based on $9.18, per gross ton. we will -assume the responsibility of oolleoting the resultant overcnsxge wivnin ninety days or m other words protect you rox any loss sustained; it is neoessary that matter be so handled.
Signed B. E. Slewtex, General Manager.n

Letter addressed to the Whitney Central Hational Bank authorizes the acceptance from .Carter Kelley Lumber Company of an amount less the amount of bill first rendered, to the extent of saoa.vo.

In sawer to this plaintiff wired the Lumber' Company;

"Have wired bank to reduce draft m accordance with your wire.*

- We find letter of February 13th, Written by the defendant to plaintiff corresponding in all respects with what hae heretofore been recited, but asxxng fax to be allowed 33 1/3 pe: cent additional to the oontraot to. take oa,re'.of the rate adjust ment.

March 4th, 1923.

'Frequent demands in writing had oeen made by plaintiff .-'•■on defendant, to all of which no answer was received-.

The only real defense offered by the defendant to this claim is insufficient; evidenoe of sele by plaintiff to¡ the Lumbei 'Company; otherwise admitting liability. The record to our entire .'.'satisfaction proves beyond doubt plaintiffs claim has been established,1 that defendant gave a written guarantee to plaintiff that-it would protect the plaintiff for the difference within ninety days. ■ Defendant, has failed to carry out its agreement.

For the reason» assigned it is ordered, adjudged and decreed,- 'that the judgment of the Court aquo be and tljjfe seme is hereby arfirmed, defendant to pay costs 6f both Courts.1

-Judgment affirmed-  