
    Leonard et al., d. b. a. Leonard, Crossett & Riley, v. Elgin, Joliet & Eastern Ry. Co.
    
      Municipal Court of Cincinnati — Court of record, speaking through journal — Counterclaim for damages in action for freight charges — Judgment on merits and not on dismissal of counterclaim — Denial of equal protection of laws not involved.
    
    (No. 18968
    Decided May 26, 1925.)
    Error to the Court of Appeals of Hamilton county. .,i
    
    The plaintiff railway filed a bill of particular's in the municipal court of Cincinnati, claiming freight charges of $138 due from defendants, being the regular charge of $120 from point of origin to destination and demurrage charges for a shipment of watermelons from 'Shewmake, Ga., to Joliet, 111. The defendants filed an answer and cross-petition, denying liability for freight charges, and setting up in their cross-petition their claim for damages, which they asserted to be due them because of the fact that the car ivas unclaimed at destination for eight or nine days, within which time the contents of the car became practically worthless.
    The plaintiff filed a reply to the answer of the defendants, and a stipulation was made between the parties, setting forth an agreed statement of facts, which is as follows:
    “Car southern 122384 containing a shipment of watermelons was shipped by Leonard, Crossett & Eiley from Shewmake, Ga., July 26, 1922, consigned to the shippers for diversion at Industry Yards, Ga. Said shipment originated on the line of the Mason, Dublin & Savannah Eailroad Company at Shewmake, Ga,, and on July 27, 1922, it was diverted from Industry Yards to Leonard, Crossett & Eiley, Joliet, 111., with instructions to .notify George Honiotes, Joliet, 111.
    
      Courts, 15 C. J. §§418 and 537.
    
      “Said shipment was sold by the shippers to .the said George Honiotes, f. o. b. Shewmake, Ga., .[for the sum of $170; a draft for that amount was drawn and attached to the bill of lading and forwarded to the Will County National Bank, Joliet, 111., on July 26.' On the same date, namely, July 26, a written notice was given to the agent of the plaintiff at Joliet, 111., to deliver said car to George Honiotes. upon presentation of bill of lading find written order.
    “¡Said shipment arrived at Joliet 7:30 p. m., August 1,1922; was delivered on team track August 2, 1922, at 5:40 a. m. The consignee to be notified was given notice by telephone between 8 and 8 :30 n, m., August 2, and a written notice was mailed him at 8 a. m., August 3. Said consignee, George ^oniotes, inspected said car and refused to accept ,the same on August 2, and so notified H. G. .Frederick Company, broker for the shippers, and also claims to have notified the agent of the carrier at Joliet upon the same date. The plaintiff claims that it was not notified of the refusal until August 10.
    “On August 2, H. G. Frederick Company wired shippers, notifying them of refusal, to which ship.pers replied by wire, advising their broker that they had instructed the above-named bank to reduce the draft and asking said broker to endeavor to dispose of said oar on the basis of the reduced draft.
    “The shippers had no further advice regarding said oar or its refusal until August 10, on which date they were advised by wire of the carrier’s agent at Joliet that said oar was at Joliet, and refused. After some exchange of wires in response to carrier’s notice of refusal given on August 10, shippers instructed the carrier on August 11 to dispose of said car for account of whom it may concern.
    “The freight charges on said shipment, which are in accordance with legal tariffs, amounted to $155. When the shipment was disposed of in accordance with instructions of shippers, same was sold for the best price obtainable under the then existing circumstances and the condition of the car, and brought a net price of $35. The demurrage charges of $18 are correct and in accordance with the tariff for the length of time the car remained on the team track, and, if any amount is due for freight and demurrage, the amounts mentioned are the correct amounts.
    “Said shipment was, at the time it was tendered to the initial carrier, and also when inspected by consignee on August 2, in good, sound condition. The reason shipment was not accepted by consignee was that he claimed the melons were undersized and not of quality ordered. If said shipment had been accepted by the consignee, he would have paid the draft of the shippers in the amount of $170; and in addition would have paid to the plaintiff the lawful charge accrued against said shipment up to. the time it was offered for delivery.
    “If the plaintiff is. entitled to recovery in this action, it is entitled to the amount claimed in its hill of particulars, $138. If the defendants are entitled to recovery, plaintiff’s petition should be dismissed and the defendants should recover on their cross-petition the amount claimed, $170.” The municipal court entered judgment for the plaintiff, making the following entry:
    “This, cause coming on to be heard upon the pleadings, upon the stipulation, and upon the argument of counsel, and the court, being fully advised, finds judgment for the plaintiff in the sum of $149.02.
    “Wherefore it is ordered that plaintiff recover from defendant judgment in the sum of $149.02, and costs, to all of which the defendants by the counsel do hereby except.”
    In his opinion in the case the court indicated that the cross-petition of the defendants had been dismissed upon the ground that a shipper cannot counterclaim for damages as against a common carrier bringing an action for freight and demurrage charges. The judgment of the municipal court was affirmed on error proceeding's both in the court of common pleas and in the Court of Appeals.
    The case comes into this court upon, petition in error filed as a matter of right; it being claimed that a constitutional question is involved.
    
      
      Messrs. Hightower & O’Brien and Mr. C. A. Schnieders, for plaintiffs in error.
    
      Messrs. Maxwell & Ramsey and Mr. Frank S. Graydon, for defendant in error.
   By the Court.

The plaintiff, a non-resident of Ohio, a foreign railroad corporation, with no agent, office, or place of business within the state, sued the defendants within the state for freight and demurrage charges. Plaintiffs in error claim that the municipal court dismissed their counterclaim for damages upon the ground that a shipper cannot counterclaim for damages when a petition for freight and demurrage charges is brought against the shipper by a railroad company. The contention of plaintiffs in error in brief is that under these facts they have been barred of their day in court upon the counterclaim, and hence have been denied the equal protection of the laws within this jurisdiction.

However, the municipal court is a court of record and speaks through its journal.

The record does not disclose that the counterclaim was dismissed. As disclosed by the record, a hearing was had upon the merits, upon the agreed statement of facts, and judgment rendered for the plaintiff. No constitutional question, therefore, is presented in the case, and the petition in error must be dismissed.

Petition in error dismissed.

Marshall, C. J., Jones, Matthias, Day, Allen, Kinkade, and Robinson, JJ., concur.  