
    The Canadian Pacific Ry. Co. v. Meier.
    
      Railroads — Prospective passenger’s contract begins upon purchase of ticket, when — Rates then prevailing control — Rule inapplicable to purchaser of space for touring party, when — Reservations not affected by advance in rates before deposit due.
    
    1. In ordinary purchase of railway ticket hy prospective passenger, actual contract with carrier arises only when a ticket is purchased, and rates prevailing at that time control; prior inquiry not being part of contract.
    2. Where plaintiff, purchasing space for touring party, was required to make deposit on each reservation and pay balance in full by certain date or reserved space would be sold for his account, special contract was created between railroad and plaintiff, and rule that contract between railway and prospective passenger begins with purchase of ticket did not apply.
    3. Negotiations between railway and plaintiff making reservations for touring party held not mere offer to sell option to purchase tickets, revocable by railway prior to payment of deposit, but constituted binding contract for space, and, where deposit was paid within time specified, plaintiff was not affected by advance in rates before deposit was due, and could recover advanced rates paid under protest.
    (Decided January 3, 1927.)
    Error: Court of Appeals for Hamilton county.
    
      On Application for rehearing.
    
      Messrs. Waite, Schiniel S Bayless and Mr. Herbert Shaffer, for plaintiff in error.
    
      Mr. Julius R. Samuels, for defendant in error.
   Hamilton, J.

Plaintiff in error seeks a reversal of the judgment of the court of common pleas of Hamilton county, which affirmed a judgment rendered by the municipal court of Cincinnati in favor of the defendant in error here, in the sum of $252.70, for claimed breach of contract.

The action grew out of negotiations for accommodations for a touring party abroad, which Meier desired to conduct, in the summer of 1925. The negotiation was by correspondence and took place in the fall of 1924. Meier wrote for rates and accommodations, suggesting to the railway company that he desired accommodations for about 25 persons. The railway company, through its agent, gave Meier rates, terms, and conditions, in November, 1924, and Meier proceeded in getting together his touring party. Having accepted the terms and rates given him by the railway company he was allotted the required space, the first allotment being for 17 berths. The allotment was reported to Meier by the railway company, and assignments made on a certain steamship sailing from Montreal. Later, space for 8 additional members of the party was requested by Meier, and thereupon berths were allotted by the railway company.

Deposits were required to be made by December 15. A short time prior to December 15, the rates were raised by the company $15 per person, effective December 15, 1924. December 13 Meier was notified by the company that before the allotment of space would be made on the basis of the old rates the names of the members of his party should be sent in, prior to December 15, and that a deposit, based on the advanced rate, would be required on those not so submitted. Meier protested, claiming his rights under the rates and terms given him, but the railway company stood firm on requiring the meeting of the advanced rate by Meier. Meier, in order to make good to the members of his party, under protest deposited the additional $15, and upon his return from conducting the party brought this action to recover $15 on the 16 reservations upon which the railway company had required the advanced rate, conceding the plaintiff the old rate to the number of 9 reservations with names submitted.

The contract was made up from a series of letters which are too numerous to quote in this opinion. We have endeavored to state the points brought out, which Meier claimed constituted the contract.

The defense is based on the proposition of law that the actual contract between the carrier and the prospective passenger only arises when the ticket is purchased, and that the rates prevailing at that time control; that prior inquiry is not a part of the contract. Undoubtedly this is true in the ordinary purchase of a ticket by a prospective passenger, in the nsnal and ordinary service to the public. In other words, an inquiry and reservation of space by a prospective passenger would” not constitute a binding contract as to the rate in force at that time, but the correspondence introduced as constituting the contract in this case presents an entirely different situation. Meier was not seeking space as a prospective passenger. He was purchasing space for a touring party. The railway company knew that he would be required to give his prospective party figures as to the cost of the trip. He was permitted to make his own separate contracts on the basis of the contract price given to him, and was required to make a deposit of $30 on each of the reservations. Additional terms were that Meier should pay the balance in full for his party by April 10, 1925; and, further, that unless he complied with payment of the balance by that time the space would be sold for his (Meier’s) account, thus recognizing clearly that it considered the space sold to Meier and would hold him for the price.

Under these facts, the rule contended for, that a contract between a railway company and a prospective passenger begins with the purchase of the ticket, would not apply. This was a special contract, and Meier was entitled to rely upon the terms and conditions thereof.

It is argued that the correspondence does not show a contract certain in its terms; that Meier only “expected” to take a party. While it is true the first letter of Meier was to this effect, the correspondence as a whole makes the contract certain.

It is strongly urged by counsel for plaintiff in error that when the railway company submitted notice of the advancement in rates, and that Meier, to get the benefit of the old rate, must submit the names of the persons comprising his party prior to December 15, this constituted a new offer, requiring an acceptance on the part of Meier, in view of the fact that Meier had not made the deposit prior to the notice; in other words, that until the deposit was made the negotiations were but an offer by the railway company to sell Meier an option to purchase tickets, which offer was revocable by the company at any time prior to the making of the deposit that would constitute the consideration for the option. A reading of the record and the correspondence does not justify this claim. While the original requirement was that a deposit should be made by December 1, a letter to Meier from the agent of the company, dated November 26, extended the time for making the deposit three weeks, within which time Meier did' make the deposit.

As we view the case, there was a binding contract for space for Meier’s party prior to the increase in rates, and Meier complied with the terms thereof. Having paid the advanced rate under duress and protest, he is entitled to recover that sum.

The municipal court was correct in so finding, and, adhering to our former pronouncement, the judgment of the court of common pleas, affirming the judgment of. the municipal court, will be affirmed.

Application for rehearing denied.

Buohw alter, P. J., and Cushing, J., concur.  