182
FEDERAL REPORTER.·
R. F.' Glenn, for petitioner. James D. Hancock, for the receiver. Before McKENNAN and ACHESON, JJ. PER CURIAM. The petitioner seeks to obtain reimbursementfrom the receiver of the sum of $478.44, with interest from April 3, 1887, which he alleges was unlawfully exacted from him as and for freights for the transpOliationofoil upon the railroad in the custody of the receiver. The exaction of this sum is admitted, as is also the fact that a less rate was charged to another shipper of oil upon the railroad. This charge is justified by the master upon the ground that the quantity of oil shipped by another. shipper was mucb larger than that shipped by the petitioner, and hence that the larger proportionate expense attending the handling and transportationof the smaller shipment warranted a higher rate than was charged for the larger shipment. In this conclusion we do not agree with the learned master. It does not differentiate the service performed for the several shippers, nor the conditions or circumstances under which it was performed. The only difference is that in one case the quantity shipped was larger, and in the other case it was smaller. This has been repeatedly held to be an insufficient and unwarrantable reason for discriminating rates of charge. See Hays v. Pennsylvania Co., 12 Fed. Rep. 309. In the statement of the law by Judge BAXTER we concur, and for this reason we cannot approve the master's finding that the petition ought to be dismissed. We agree with the master that the petitioner's claim for hire of cars ought to be disallowed. We therefore direct that a decree be eLtered in favorofthe petitioner for the sum of $478.44, with interest from April 3, 1887, and costs against the Buffalo, New York & Philadelphia Railroad Company.
GOODRIDGE et al.
tI. UNION
PAC. Ry. Co. et al.
(Oz'rc'Uit Co'Urt, D. Oolorado. January 9,1889.)
1.
To a complaint by dealers in coal 1\ railroad company for dIscrimination in allowing freight rates to a rIval coal company lower than schedule rates. defendant alleged that defendant had become liable to the favored com. pany for trespass on its mines; that defendant had givl:ln up the working of certain coal mines, and had procured the favored company to take said mines off defendant's hands; and in order to procure the coal needed for defendant's consumption, and to settle the claim for trespass. and to get rid of the operationof the mines, defendant entered into a contract by which the favored company was to supply all defendant's coal at a low figure, and defendant was t? carry company's .coal at a low figure; and that by reason of said facts It was. believed when said contract was made that the amount to be paid by said favored company would be equal to the schedule rates. lje'd, that the answer set up considerations received by defendant from the favored company, for which less rates were given to.the latter, on which no estimate could be made to ascertain the amount of the charge, and such answer was insufficient.
CARRIERS-OF .GooDs-DISCRIMINATION-CONBIDERATION.
GOODRIDGE V. UNION PAC. RY. CO.
183
2.
SAME.
a.
Where plaintiffs and the favored company are both dealers in coal in the same marke.t, the direct effect of a reduced rate to the favored company is to reduce the plaintiffs' profits to the extent of such reduction, making an unjust or undue discrimination within the meaning of Const. Colo. art. 15, 6. A general denial of all material allegations in the complaint is authorized bV Code Colo. 1887. .
PLEADING-GENERAL DENIAL. .-.
At Law. On demurrer to answer. Action by Henry Goodridge and another against the Union Pacific Railway Company and others for discrimination in freight rates. The first count in the complaint was for a penalty; the second, for unlawful discrimination and to recover overcharges; the third, for money had and received ·to plaintiff's use. Sampson & Millett, for plaintiffs. Teller Orahood, for defendants.
«
HALJ,ETT, J. In the second defense the dis0rimination of which plaintiffs complain isjustified on the ground that defendant has become liable to the Marshall Consolidated Coal Mining Company (the favored company) in respect to a claim for damages against the Denver, Western & Pacific Railway Company for a trespass committed on the lands now owned by the Marshall Company, in building the road on and across such lands. It is alleged that.the Denver & Western Company broke into the mine and set fire to it, from which great. damage resulted to the owners of the property. This claim for damages has been acquired by the MarshallCompany, and may be enforced against the road, built by the Denver, Western & Pacific Company, now owned by defendant. The amount of the claim, and the extent to which it became the consideration of the contract with the Marshall Company to carry for that company ata less rate than for others, is not shown. It is also alleged in this defense that before the time of making the contract with the Marshall Company for giving to that company less rates than to others, and in the year 1878, the defendant made a contract with the Union Coal Company, the details of which need not be stated. But defendant in the year 1885 was convinced that it would be expedient and necessary to cancel the contract with the Union Coal Company, and make the contract with the Marshall Company, which is set out in the answer. On that point the answer reads as follows: "That at said date, on account of the complaints that had theretofore been made by the owners of the Marshall Coal Mining Company, and tne owners of other mines in Boulder county, this defendant concluded that it was for the bestint61'est of the said Union Pacific Railway Company to discontinue its connections with the said Union Coal Company, and to discontinue the actual working of any mines through said company; that thereupon and for that purposej it entered into negotiations with the said Marshall Consolidated Coal Mining Company for the purpose of procuring the said company to take oJ! its hands. OllOt! the hands of the Union Coal Company, controlled and operated by it, the Si:l.idmines as Rbove stated, and that it Was further induced to make said contract from the fact that the former owners of the Marshall coal mine
184
FEDERAL REPORTER.
J.1ad always been complaining of the rates, and giving to the defendant great trouble and annoyance in respect to said complaints about said rates. That it was further induced to enter into said contract for the reason that said Marshall Consolidated Coal Mining Company bad succeeded to the rights of the former owners of the Marshall coal mine, together,with the right to demand from the ;Denyer·.Western and Pacific Railway Company, or its assignees, damages as were claimed at that time; the said lands of the Denver, Western and P;wific haVing already at that time been conveyed to the Denver, Marshall and Boulder Railway Company, subject to said claim; and therefore, for the purpose both of getting rid of the operation of said mines formerly operated by the Union Coal Company, and for the purpose of prOViding this defendant with some source upon which it could rely for the coal needed by it for consumption 011 its locomotives, and for the further purpose of settling the said claim so made by the former owners of the said Marshall Coal Mining Company and assignpd to the Marshall Consolidated Coal Mining Company, it made and entered into an agreement, in words and figures following, tu-wit." And in the contract with the Marshall Company the prior agreement with the Union Coal Company, and 'the df'sire of the parties to discontinue business under it referred to, is included in the terms of the contract; and the Marshall Company agrees to furnish coal at the mine for defendants' use at the cost of mining and loading on cars, not to exceed $1.25 per ton, and to have aU its coal carried on defendants' lines, 80 far as they may extend. DefEmdant agrees to carry the coal for one dollar per ton, "unless two hundred thousand tons shall be minE-d and furnished for transportation * * * yearly, in which case a rate of sixty cents per ton shaH be given, for all coal transported." If coal is ordered by defendant "for commercial uRes," it shall be furnished at theeost of mining and delivery on board cars, with 50 cents per ton added. And if within two years from the date of the contract the Marshall Company shall desire to sell its capital stock, defendant shall have the right to buy "in preference to any other purchaser." The contract is to remain in force five :rears. Further on, and concluding, the answer reads as follows: "This defendant further says that the sole and only variation from sched ule rates made by this defendant in respect to the carriage of coal by any parties over the Denver, Marshall and Boulder Valley road is that made by and between this defendant to the said Marshall Consoidated Coal Company, and that it was made for the reasons above given, and for no other reasons whatever.. And this defendant further says that it is informed, and believes that it costs to the said Marshall Consolidated Coal Mining Company, and would have cost to this defendan t had it continued to mine the Louisville Mine through the Union Coal 90mpany, the sum of at least $1.6U per ton to mine coal fwm the said Marshall Consolidated Company Mine, and to get the same in cars upon the tmck, as provided for in this contract; and that it would hlwecost this defendant the same to mine from the Louisville and Erie mines had it continued to mine for its own use in said mines. And this. defendant further says that on account of the settlement of the claims made against it by the said Marshall Consulidated Mining Company, which said claims were settled and provided for in the said contract above set forth, and on account of the coal necessarily used by it, the defendant, and furnished to it by the said Marshall Consolidated Coal Mining Company under the terms. of the contract above set forth, the said Marshall Consolidated Mining
185
pany have paid to this defendant. and this defendant has received of the Mara higher rate as a matter of fact shall Consolidated Coal Mining than one dollar per ton. although it was not intended that the rate should exceed the schedule price; that at the time of the making of said contract it was believed that the price at which the coal was to be furnished to this defendant for its use on locomotives. and on account of the settlement of the claims as aforesaid, and on' account of the benefits accrning to this defendant by reason of the Marshall Consolidated Mining Company taking and operating the said Louisville and Erie Mines. this defendant would receive from the said Marshall Consolidated Coal Mining Company. for the said period of five years, during which said contract was to operate, the same price as that fixed in the schedule price." .
From all this it is apparent that the answer sets up certain considerations received by defendant from the Marshall Company, upon which less rates are given to the latter than to other shippers. And these considerations are not in the way of a charge for carrying coal upon which any estimate can be made to ascertain the amount of such charge. Whether we refer to the claim for damages against the Denver & Western Company, or to the matter of furnishing coal for defendant's use, or to any other consideration for the contract, it is plain that there is no basis of calculation other than the rate fixed in the contract itself. It is not possible to say how much, if anything, should be added to the contract price for carrying coal on account of the claim for damages against the Denver & Western Company, or on account of canceling the contract with the Union Coal Company, or on account of furnishing coal at cost for defendant's use, or on account of furnishing coal for sale at a reduced price, or on account of any other matter mentioned in the answer. The whole answer amounts only to this: that the. Marshall Company is allowed less rates. than other shippers are required to pay upon considerations which are satisfactory to defendant. And it is obvious that this is no answer to a complaint of unlawful discrimination. The constitution of the state provides that "no undue or unreasonable d.iscrimination shall be made in charges * * * for transportation of freight * * * within the state;" and the law enacted to enforce that provision isthat "no railroad company shall * * * charge, demand, or receive from any person, company, or corporation for the transportation of persons or property, or for any other service, a greater sum than it shall, while operating under the classification and schedule then in force, charge, demand, or receive from any other person, company, or corporation for a like service from the same place, or upon like conditions and under similar circumstances; and all concessions or rates, drawbacks, and contracts for special ratfs shall be open to and allowed all persons, companies, and corporations alike. at the same rate per ton per mile, upon like conditions, and under similar circumstances." This law cannot be controlled or defeated by any agreement between the railroad company and the favored shipper. It is true that when the consideration paid for reduced rates by the favored shipper is obviously equal to the' discount allowed him, the law does not apply. Whenever that fact appears, since it matters not in what form the shipper pays the usual
·
186
rates, the alleged discrimination disappears, and the contract is no longer obnoxious to the law. If, to illustrate, the damages due from the Denver & Western Company had been liquidated, and the agreement was to carry a certain quantity of coal for the amount so fixed, the question would be different. As it stands, the agreement is to give to the Marshall Company a reduced rate for certain considerations which defendant says are sufficient to make up the discount from the schedule rate; and as to that matter, the fact cannot be ascertained from the contract or otherwise. So,understood it is clear that the contract affords no protection to defendant for the discrimination in rates to which plaintiffs and other shippers ofcoal over defendant's road are subjected. In this case no difficulty arises as to the meaning of the words "unjust or undue discrimination" in the law. Plaintiffs and the Marshall Company are dealers in coal in the same market, depending largely on the same rates of transportation for the profits of their business. The direct effect of a reduced rate to the Marshall Company is to reduoe the profits on plaintiff's coal to the extent of such reduction. The demurrer to the second defense will be sustained. . A general denial of all material allegations in the complaint was not allowed under the Code of 1877; but it is authorized by the New Code of 1887, § 56, and the demurrer to the first defense will be overruled.
REED
et al.
tI. RAmOND.
((Jircuit Oourt, l¥.IJ. PennayifJania.
October 28, 1888.)
L
An affidavit of defense is insufficient unless it sets forth explicitly all the facts necessary to constitute a substantial defense. VENDOR AND VUDEE-PURCHASE-MONEY MOR'j:'GAGE-FoRECLOSURE.
OF DEFENSE.
B.
In a suit on a purchase-money mortgage the affidavit of defense set forth that the plaintiffs knew that defendant purchased the mortgaged premises to manufacture thereon iron and steel by a new process. and "the purchase was made upon the direct assurance. condition. and representation that natural gas would be immediately and continuously carried to and supplied to said premises in sufficient quantities for manufacturing purposes, "by C. company, with which some of the plaintiffs were connected. and plaintiffs "knew that without the supply of such goas said purchase would not have been made;" but that natural gas had not been so furnished by C. company, or by any o11e; although said company had completed its lines, and was supplying goas to other manufacturing concerns. Held, that the affidavit of defense was insufficient to prevent judgment.
Sci. Fa. BUr Mortgage. On rule for judgment for want of a sufficient affidavit of defense. John P. Vincent, for rule. S. ScluYyer, Jr., cOntra. ACHESON,
J. This is a 8cire Jacias upon a mortgage given by the de--
(
fendant to his vendors, the legal plaintiffs, for the balance of purchase
.
.REED 11. RAYMOND.
187
money of certain lands (having a manufacturing establishment thereon) which the latter sold and conveyed to the former. Itappeats from the affidavit pf defense thatthe mortgage was assigned by the legal ,plaintiffs to the use plaintiffs, in consideration of the satisfaction by the latter of paramount liens which they held against the premises; the defendant executing a certificate of DO defense. Whether the affidavit of defense states such facts as entitle the defendant, in the face of his said certificate, to defend upon the grounds set up against the assignees of the mortgage, for whose use the suit is prosecuted, I will not stop to inquire,but will proceed at once to consider whether the affidavit discloses any sufficient ground of defense. It is well settled that an affidavit of defense is insufficient unless it sets forth all the facts necessary to constitute a substantial defense. Br'lJar v. lIarrison,37 Pa. St. 233; Marsh v. Marshall, 53 Pa. St. 396. General averments amounting to legal conclusions will not do; the facts must be stated in order that the court may draw the proper conclusion. Id. For example, general allegations of fraud or of undue influence in procuri.ng an agreement are not enough. Sterling v. Insurance Co., 32 Pa. 8t; 75; Matthews v. Sharp, 99 Pa. St. 560. Nothing should be left to inference, for whatig not stated in the affidavit must be taken not to exist. B'-ick v. Coster, 4 Watts & S. 494; Peck v. Jones, 70 Pa. 81. 83; Asay v. hieber, 92 Pa. 8t. 377., An affidavit of defense to a portion of a claim must state the amount admitted to be due. Griel v. BuckiuJJ, 114 Pa. St. 187, 6 Atl. Rep. 153. In an affidavit of defense setting up a breach of warranty of the quality of goods sold, the mere averment of a warranty, without more, is bad. The affidavit should disclose whether the warranty was express or implied, and should set forth its terms; and state when, by whom, and by what authority it was made. Gould v. Gage, 118 Pa. St. 559-565, 12 At!. Rep. 476. Here the material portions.of the affidavit of defense are in the words following: the legal plaintiffs and the use plaintiffs knew that affiant was making said purchase for the purpose of carrying on therein the business of manufacturing iron and steel by a new process, and such purchase was made upon the direct assurance, condition, and representation that natural gas would be immediately and continuously carried to and supplied to said premises in sufficient quantities for manufactul'ing purposes; and that the Columbia GasLight &I Fuel Company, then constructing its line, and with which the said Wheeler, or others of the plaintiffs, was connected, would so furnish and Bupply Said gas; and said legal and use plaintiffs well knew that without the supply of such gas said purchase would not have been made. * * * But notwithstanding said condition and representation upon which affiant made such purchase, gas was not furnished to said property at any time, either by the Columbia Gas-Light & Fuel Company, or any other company or person, although said Columbia Gas-Light &I Fuel Company have long since completed their said lines, and have been furnishing gas to other manufacturing concerns in Sharon and Middlesex."
Now, certain it is that the " direct assurance, condition, and representation" referred to are not contained in the mortgage sued on, and it is not alleged or pretended that they are to be found in the deed conveying the property to the defendant. Were they, then, verbal, or embodied in
188
some collateral writing? When were they made? Who gave the "direct assurance," or entered into the" condition," or made the" representation?" Was it one or other of the legal plaintiffs, or one of the use plaintiffs, or the attorney, referred to in another part of the affidavit, who acted both for the defendant and the use plaintiffs, or was it some different person altogether? Was the "condition" express or implied? What were its terms? If natural gas was not furnished, was the defenda-nt to be recompensed, or was the sale to be rescinded at his election? Upon all these material points the affidavit of defense is wholly silent. As was said in Marsh v. Marshall, supra, so may it be said here, that" upon such a loose and inconclusive statement of part of the facts of a case no court would deem it prudent to base a judgment." Again, according to the averment of the affidavit the natural gas was to be furnished and supplied not by the plaintiffs, or any of them, but by the Columbia Gas-Light & Fuel Company, "then constructing its line, and with which said Wheeler, or others of the plaintiffs, was connected." What this connection was, is not disclosed. It will be perceived, however, that no bad faith or misrepresentation is imputed to any of the plaintiffs. Indeed, the alleged "assurance," etc., (by whomsoever made,) related to something to be done in the future by the Columbia Gas-Light & Fuel Company. At the very utmost, then, the plaintiffs were only answerable for the refusal of that company to furnish and supply the needed gas. Now, the defendant contents himself with the cautious statement that no gas was supplied to him, although said company completed its lines, and has furnished natural gas to other manufacturing concerns. But he avoids saying that he put his manufacturing establishment in proper condition to receive natural gas, and he carefully refrains from averring that he ever notified or requested said company to furnish such supply, or that the company refused to furnish it. Furthermore, the affidavit of defense does not allege that the defendant has sustained any damages whatever by reason of the non-supply of natural gas. Giving the utmost allowable effect to the averments of the defendant's affidavit, it shows only a partial failure of consideration susceptible of compensation in damages, if any loss was sustained. Yard v. Patton, 13 Pa. St. 278-282. But the defimdant does not allege that he has suffered any actual damage. Certainly the affidavit of defense .presents no case for the rescission of an executed contract. No agreement to rescind is set out, and no grounds are laid upon which a court would base a decree of rescission. Stephen's Appeal, 87 Pa. St. 202. In the opinion of the court, the affidavit. of defense is incomplete, vague. and evasive in its statement of facts, and, under the authorities, altogether insufficient to prevent judgment. Oity of Erie v. Butler, 14 Atl. Rep. 153. And now, October 23,1888, the rule to show cause why judgment should not be entered for want of a sufficient affidavit of defense, is made absolute; and it is ordered that judgment be entered in favor of the plaintiffs for the amount of their claim, etc' l as set forth in their statement.
MEALMAN V. UNION PAC.
RY.
Co.
189
MEALMAN ". UNION PAC.
Ry. CO.
((}ircuit Oourt, D. Col<Yrado. January 10,1889.) MASTER AND SERVANT-NEGLIGENCE OF VICE-PRINCIPAL-PLEADING.
In an action against a railroad company for the alleged negligent kflling of an engineer in defendant's employ, by decedent's engine colliding with an· other in the yard, a complaint which avers that engineers were authorized by a rule of the company to move their engines only on the signal of the "helpers," and that decedent saw the "helper" of the other engine, who gave no signal, but that the other engine was moved in obedience to a signal of the "master mechanic, having sole control of the yard," is demurrable. as not. showing that such master mechanic occupied a position rendering defendant liable for his negligence.
At Law. On demurrer to complaint. Browne &- Putnam, for plaintiff. Teller &- Orahood, for defendant. BREWER, J. In the case of Mealman against the Union Pacific Railway Company there is a demurrer to the complaint. The complaint charges that Mealman, the deceased, was an engineer in the employment of the defendant in its yards, running a switch-engine; that. driving that engine towards the round-house, there was a collision between it and another engine driven by anotheremplQye of the defendant, the collision resulting in the death of Mealman. His widow is the plaintiff in this suit. The complaint avers that engineers were authorized to move their engines only at the direction of the helpers, and upon their signals, and that such was the rule of the company; that Mealman saw the helper of the other engine, and saw no signal, and that in fact he gave no signal, but the engineer of that engine his engine onto the track upon which Mealman was in obedience to the signal of some other party. Now, if it stopped there, it would be a case where there would be the negligence of one engineer causing injury to another engineer in the operation of two engines at the same point. Within the rule laid down in Randall v. Railroad (h., 109 U. S. 478, 3 Sup. Ct. Rep. 322, and within the case of Howard v. Railroad Co., in which I wrote an opinion, 26 Fed. Rep. 837, there would be no liability on the part of the defendant, it being one employe's negligence causing injury to another. Beyond that the complaint goes on to aver that the party who gave the signal in obedience to which the engineer of the other engine started his engine and brought on the collision was the master mechanic, having sole control of the yard; so the case presented is, where one having sole control of a yard issues an order in disregard of the rules of the company, whether that act is negligence imputable to the company. There is a line of cases, and there is a doctrine which was recognized by my predecessor, Judge MCCRARY, to the effect that the mere matter of subordination determines the liability of the employer; that wherever one party stands subject to the orders the company employs, the negligence of the latter of another party is the negligence of the company; so that, if a section boss is guilty of
