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eBook details

• Title: Mt. Tom Motor Lines v. Mckesson & Robbins
• Author : Supreme Judicial Court of Massachusetts
• Release Date : January 22, 1949
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 73 KB

Description

RONAN, Justice. This is an action of contract to recover additional payment for the transportation and delivery of the defendant's
goods from January 2, 1944, to August 21, 1946. The plaintiff appealed from the denial of its motion to recommit the report
of an auditor whose findings were to be final, from the denial of its motion for judgment on the auditor's report, and from
the ordering of judgment for the defendant. The defendant, a large manufacturer and distributor of drugs, has a branch office, warehouse and salesroom in Springfield,
and since 1931 and up to January 2, 1944, it had engaged one Ertel, doing business under the name of Sauer's Express, to deliver
merchandise the defendant had sold to retail drug stores in Hampden and Hampshire counties, paying him at different rates
for deliveries made in three different zones or districts into which these counties were divided depending upon their respective
distances from the defendant's place of business. The plaintiff, having purchased Ertel's business in December, 1943, notified
Ertel's customers, including the defendant, and sought the continuance of their business. It began to make deliveries for
the defendant on January 3, 1944, the first business day after it had taken over Ertel's business, and conducted the business
in the same manner as had Ertel, receiving the same rate of compensation as had been paid to him until March 30, 1944, when
by mutual consent the rates were increased and continued until the parties ceased to do business with each other in August,
1946. The department of public utilities issued on January 4, 1944, an irregular route common carrier certificate to the plaintiff,
and on January 18, 1944, it approved a transfer to the plaintiff of Ertel's certificate as a regular route common carrier.
The plaintiff filed with the department on March 30, 1944, tariffs 1 pertaining to the rates for work done by it for the
defendant, to be effective on May 1, 1944, which stated rates higher than those paid by the defendant. The defendant knew
that when the plaintiff began to transport its goods it was necessary for the plaintiff to have a certificate from the department,
but it did not know the form of the certificate which had been issued to Ertel or to the plaintiff or the rates filed by the
plaintiff; neither did it know that Ertel or the plaintiff never had a permit as a contract carrier. During the period that
the plaintiff was transporting goods for the defendant, the plaintiff did business with other shippers charging them different
rates both for the delivery of goods and for commissions for collecting the price from customers when cash was paid on delivery.
These collections of cash were paid over by the plaintiff's operator to the defendant the day after they were received by
him in accordance with the agreement between the plaintiff and the defendant. The moneys so collected did not go through the
office of the plaintiff. The auditor found that the plaintiff was acting as a contract carrier in furnishing transportation
for the defendant, and that therefore the defendant was not indebted to the plaintiff.

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