Transmarine Corp. v. Delaware & Hudson Co.

The complaint alleges that the Stephens Lumber Company at Pensacola, Fla., shipped by the plaintiff certain lumber consigned to the defendant under a bill of lading issued by the plaintiff which provided among other things that the freight charges were to be paid by the consignee on delivery and that the owner or consignee should pay the freight and all other lawful charges accruing under said bill of lading; that the charges amounted to $2,266.54; that the lumber was duly delivered to and received and accepted by the defendant and that no part of the charges have been paid. The answer admits these allegations with the exception that it denies any knowledge or information sufficient *813to form a belief that no part of the sum of $2,266.54 (the sum demanded in the complaint) has been paid and in the same paragraph admits that it has not paid any part of said sum. As a separate and distinct defense defendant alleges that the plaintiff made no contract with the defendant for the transportation of the lumber nor did the latter ever agree to pay the freight charges; that defendant’s agreement with the Stephens Lumber Company required the consignor to pay the freight charges and that the consignor violated its agreement in “ forwarding charges collect; ” that plaintiff has failed to exhaust its remedy against the consignor and that it omitted to notify the defendant that the charges had not been paid by the consignor.

The allegations contained in the complaint coupled with the admissions in the answer establish a prima facie case. The denial of any knowledge or information sufficient to form a belief as to payment does not raise an issue, particularly in view of the fact that defendant admits that it did not pay the sum due under the contract. The separate defense pleaded in the answer does not raise an issue to be determined by a trial. It is settled that the receipt and acceptance of the goods by the consignee under a bill of lading providing for payment of freight charges on delivery implies a promise on the part of the consignee to pay- therefor (Pennsylvania Railroad Co. v. Titus, 216 N. Y. 17; New York Central Railroad v. Ross Lumber Co., 234 id. 261); neither would any agreement between the consignor and the consignee of which plaintiff had no knowledge be binding on the plaintiff, nor would the latter be bound to inform the consignee that the freight was not paid for by the consignor. Under the circumstances there remains nothing to be determined upon a trial of this action. Motion for judgment on the pleadings granted; settle order on notice.