Railroads — Freight charges — Preferences — Duty to collect from consignee — Bill of lading marked "to be prepaid" — Payment by consignee of sight draft including freight charges — Estoppel of defendant to assert claim against consignee.
Where it appeared that goods were shipped by the plaintiff lines under a bill of lading marked "to be prepaid", consigned to and received by defendant; that the invoice covering the goods and the freight thereon, together with a sight draft and the bill of lading, were forwarded to a bank; that upon notification by the bank, and relying upon the representation in the bill of lading that the freight charges were to have been prepaid, defendant paid the amount of the sight draft, including the freight charges, in full, 16 days after the goods had been received by it; that under the I.C.C. regulations the carrier was not permitted to deliver the freight to the consignee until the freight charges had been paid, except that the carrier might extend credit to the consignor upon a prepaid shipment for a period not to exceed 96 hours after the goods were received for shipment; that plaintiff had not demanded payment within the 96 hours grace period; and that the consignor was adjudicated bankrupt, plaintiff having failed to collect any part of the freight charges for which action was brought against defendant; it was Held that plaintiff was estopped by its conduct from asserting its claim against defendant.
Argued April 12, 1955.
OPINION PER CURIAM, July 21, 1955:
We feel that the judgment of the lower court should be affirmed on the opinion of President Judge RODGERS.
In its opinion the lower court relied upon the case of Davis v. Akron Feed and Fuel Co., 296 F. 675 (C.A. 6). On May 25, 1955 an opinion was filed in the case of United States of America v. Mason Dixon Lines, Inc., 222 F.2d 646, by the Circuit Court of Appeals for the Sixth Circuit, in which it stated: "This opinion [referring to the Davis Case] has been criticized, but we are not convinced that we should depart from the equitable reasoning of our able and distinguished predecessors."
Our Court is of a similar opinion.
Judgment affirmed.