
    De Witt C. Bouker, Jr., App’lt, v. Long Island Railroad Company, Resp’t
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 26, 1895.)
    
    Cakribrs—Charges—Contract.
    Where an offer to carry freight at a certain rate is withdrawn before acceptance, no contract exists, and the amount paid in excess of that rate cannot be recovered as for breach of contract.
    Appeal from a judgment, reversing a judgment of a justice of the peace in favor of plaintiff.
    
      George Wallace, for app’lt; William J. Kelly, for resp’t
   Dykman, J.

This is an appeal from a judgment of the county court of Queens county, reversing a judgment in favor of plaintiff, after a trial before a justice of the peace, for $82.94. The action was brought for a breach of the contract. The facts are substantially undisputed. In October, 1893, the plaintiff requested the traffic manager of the defendant to give him rates for the transportation of broken stone from Long Island City to Y alley Stream and intermediate points, Hempstead, Far Rockawav, and stations between Pearsalls and Freeport, and the traffic manager submitted to him for his consideration, rates between those places at eighty cents per gross ton, and to stations east of Free-port, to and including Wantaugh, eighty-five cents per gross ton. There was no acceptance of this offer, and, without further communication between the parties, the traffic manager, on the 3d day of February, 1894, wrote the defendant a letter, in which he withdrew his offer in the following language:

“ 1 have to advise you that in future we shall require the prepayment of all charges on freight shipped for your account over our lines. I would also state that the rates quoted you Oct. 24th, to Valley Stream and intermediate points, to Hempstead, Ear Bockaway, and all stations between Pearsals and Wautaugh, have this day been canceled. I have as well made void the rate of fifty cents per ton on your stone to Bockaway Beach.”

That withdrawal was received by the plaintiff on or before February 7, 1894, On the 20th day of March, 1894, two months after the withdrawal of the offered rates, the plaintiff entered into a contract for building macadamized roads that required the transportation of stone to Hempstead, which was one of the points to which the rate of eighty cents had been quoted October 24th and withdrawn February 3d. In May the plaintiff brought car-toads of stone for Hempstead to the railroad, and insisted that they transport it at eighty cents. The traffic manager reiterated the withdrawal of the eighty cent rate and refused to carry for less than ninety cents. The plaintiff shipped the stone, and paid the freight at the rate of ninety cents, and this action is brought to recover back ten cents per ton on the May shipments to Hemp-stead.

As we have already stated, the plaintiff 2’ecovered in the court of the justice of the peace, and that judgment was reversed on appeal to the county court It is to be observed, in the first place, that there was no contract on the part of the defendant to cony the stone at eighty cents per ton. There was an offer to do so, which was not accepted, and which was withdrawn before the shipment of any of the stone for which the plaintiff paid the freight which he claims to recover in this action. As there was no contract in existence between the parties, it was the right of the defendant to charge the plaintiff the usual rates for the transportation of his stone ; and, as the freight was paid, that deprived the plaintiff of any cause of complaint. It cannot be claimed that the payment of the ninety cents was under duress, or was induced by fraud, or through mistake. There was no duress, for the plaintiff was under no obligation to ship the stone, or to place his-property in the possession of the defendant. The payment was voluntary in every proper sense of the term, and was made by the plaintiff with the full knowledge of all the facts. He knew,, before he commenced the shipment of the stone, the terms upon which they would be received and transported to Hempstead and other points. The railroad company claimed no lien on his property, and never refused to deliver the stone to him. Neither can it be said that this is an action for unjust discrimination. Neither the pleadings nor the proof make such a case.

The judgment of the county court should be affirmed, with costs.  