PENNSYLVANIA RAILROAD CO. vs. BRISBIN.
A freight agent who is appointed under a printed contract by which agents who furnish a warehouse, rent free to the company, are entitled to retain certain charges, cannot maintain an action for rent of a warehouse on an implied contract against the company if he has retained each charges.
Error to Common Pleas of Clearfield County, No. 58, May Term, 1878. George M. Brisbin brought an action of assumpsit against the Pennsylvania Railroad Company for rent of a warehouse used for storing freight. There, was no express contract to rent the warehouse. Brisbin had been appointed second class freight agent of the company under form No. 43 which is as follows:
Form No. 43. Pennsylvania Railroad Company. Rates of commission which may be charged (but not exceeded) by second class agents,on the Pennsylvania Railroad and branches and the West Pennsylvania Railroad:
On and after this date the commission to be allowed second class freight agents for receiving and forwarding shipments of lumber, bark, hoops, poles, shooks, staves, coal, coke, gravel, sand, sand rock, lime, limestone, building stone, brick, fire clay, iron ore, pig metal, fire brick and salt, will be
For 1 eight-wheeled car........................... 60
For 2 “ cars........................ $1.10
For 3, 4 or 5 eight wheeled cars .............. 1.25
For ever/ additional eight wheeled ear.................. 20
The commission on all other articles will be $1.00 per car load. Four-wheeled cars one-half the above rate per carload. The commission for a single package or small lot will be fifteen cents, and for parts of car loads ten cents per 1000 pounds, until the price amounts to that allowed for one car load.
Second class agents are allowed to charge commission as above on all shipments in company cars to or from their stations, and on all shipments in company cars to or from adjacent private sidings or points at which the company has no agent, when by the rules or special orders, they are required to make or report the manifest for such shipments.
An agent loading or unloading any article marked (*) on the tariff (to be loaded and unloaded by the shipper) will be entitled to an additional charge of fifteen cents per ton.
*68No commissions'are chargeable on shipments in-cars of individual transporters when they furnish their own warehouse or siding ; but in cases where the warehouse or grounds of the company or of the agent is used for loading or unloading, then commissions may be charged, but shall not exceed the above rates.
The above charges include storage for a reasonable length of time, not exceeding three days. If articles are allowed to remain longer than'three days, ten per cent, per diem of the amount of commissions may be charged for storage ; and where agents-furnish the building or grounds used for storage or warehouse purposes free of charge to the company, charges for this service may be retained by them, otherwise such charges should be remitted to the Division Superintendent.
Expenses other than commissions must be fully explained on manifests, and will be subject to the approval of the auditor.
The above rates are subject to reduction by the General Superintendent whenever, in his judgment, the interest of the company demands it.
, A. J. CASSATT,
Dec. 1, 1862. General Manager-
The defendant offered evidence to show that Brisbin had retained the charges which are to be remitted to the company when the warehouse is not furnished by the agent rent free. Brisbin recovered a verdict for $638.90 on,a quantum meruit. The company took this writ and assigned the following errors :
1st. The court erred in saying to the jury: “All the evidence is submitted to the jury for their consideration, and it will be for them to determine whether this warehouse of the plaintiff was-used and occupied by the defendants for the purpose of their busi-. ness at their request, or that of their superintendents or agents. If it was, we discover nothing in the rules and regulations of the company that would preclude Mr. Brisbin from recovering whatever. in the judgment of the jury would be a reasonable compensation for the time it was so used and occupied.”
2d. The court erred in answering the defendants’ second point the point was as follows: “That if the jury believe that the plaintiff was appointed second class freight agent, and accepted *69the appointment, and the rules and regulations of the defendant required him to furnish his own warehouse, and that he did so, and made and collected commissions and charges upon goods, warés, &c., stored therein, and under the rules and regulations of the defendant retained the same, and received compensation in this manner, he cannot recover in this action, and the verdict must be for the defendant.”
The answer of the court was: “This point is refused for the reason that it would withdraw from the consideration of the jury the evidence in the cause.”
3d. The court erred in answering defendants’ fifth point; the point was as follows: “The plaintiff being an employee of defendant, and there being no evidence whatever showing an agreement or contract between the plaintiff and defendant by which the plaintiff was to receive compensation for the use and occupation of the warehouse, siding, &c., the plaintiff cannot recover, and the verdict must be for the defendant.”
‘ The answer of the court was : “This point is refused.”
Messrs. Wallace & Krebs, for plaintiff in error.
Brisbin retained the charges for storage and cannot charge rent. Corporations are not liable on a quantum meruit for services performed. There must be an express contract for compensation or there can be no recovery. Kilpatrick vs. Penrose Ferry Bridge Co., 13 Wright, 118. Carr vs. Chartiers Coal Company, 1 Casey, 837. Loan Association vs. Steinmetz, 5 Casey, 534. J. B. McEnally and F. Fielding, Esqs., contra.
The presumption of an implied contraqt is not changed because defendant is a corporation. McMasters vs. Reed’s Ex., 1 Grant, 36, 49. Henwood vs. Cheeseman 3 S. & R. 500. 1 Chitty’s Pleadings 119 and notes. Where one occupies land of another, the hurden is on him to show that no rent is to be paid. Sterrett vs. Wright 3 C., 259. Stockton’s Appeal 14 P. F. S., 60. As to the second specification of error the request embraced such á number of facts that the judge was not bound to answer it. Kern vs. Peoples R. R. Co., 2 W. N. C., 718. Wharton vs. Douglass, 26, 273. The cases of Kilpatrick vs. Bridge Co., 13 Wright 118, Loan Association vs. Steinmetz 5 C., 534, and Carr vs. Chartiers Coal Co., 1 Casey, 337, are not applicable to the case.
*70The decision of the court below was reversed on June 17, 1878, in the following opinion by
Trunkey, J.:
There was no error in saying “that there is nothing in the reglations prescribed in Form 43 which makes it an inflexible rule of the company that a second class freight agent shall' furnish a a warehouse for the use of the company free of charge.” That form is just what it purports to be, and that is, “rates of commissions which may be charged by second class agents.” It pré~ scribes that when agents furnish the buildings or grounds used for storage or warehouse purposes, tree of charge to the company, they may retain the charges for this service, otherwise remit such charges to the Superintendent. In case of conflicting evidence as to the furnishing of the house and ground, and no claim for express contract for payment of rent, the accounts rendered monthly by the agent and received by the company without objection, ought to be an unerring guide to the truth. If the agent retained the charges for storage on what just principle can he afterwards claim the rent? If be remitted the charges how can the company, accepting them, escape liability for the use of the premises ? The course of dealing for a year and four months, following the explicit terms for retention or' remission of charges, ought to be a law to the parties, not to be set aside by pretence of either that he did not know what his own agent was doing.
Brisbin, the plaintiff, and Wilkins, the Superintendent of defendant, agree that there was no contract for payment of rent. Taylor, then special agent and now auditor of defendant, testified that form 43 is the only contract with second class freight agents •of which he has knowledge, and he knew of only one station on the line of the road where an amount of money was paid for any such services, and that not for use of a warehouse, but for a large lot of ground for storing cars. In cross-examination he said, as a,general thing where the company owns the warehouses it has first class agents, and owns them in very few instances where they have second class agents. “Q. There is no rule requiring a second class agent to furnish a warehouse ? A. No, sir ; but he would not be appointed a second class agent unless he had a warehouse to furnish.” The station book was put in evidence, and also the *71returns made by the plaintiff to the company. The attention of Taylor was called to a few items charging “for the use of sidings,” when he testified to the mode of making the accounts.
The defendant’s second point was, “That if the jury believe that the plaintiff was appointed second class freight agent, and accepted the appointment, and the rules and regulations of the defendant required him to furnish his own warehouse, and that he did so, and made and collected commissions or charges upon goods, wares, &c., stored therein, and under the rules and regulations of the defendant retained the same, and received compehsation in this manner, he cannot recover in. this action, and the verdict must be for defendant.” The court answered, “This point is refused for the reason that it would withdraw from the consideration of the jury the evidence in the cause.” This is assigned for error, and is the only assignment requiring notice.
The point asked instructions against the plaintiff if the jury believed certain facts. These were: 1. That the plaintiff was appointed and accepted the place of second class freight agent. 2. That he was required to furnish by the rules and regulations and did furnish his own warehouse. 3. That- he collected commissions and charges upon goods stored in said warehouse. 4. That he retained the same under the rules and regulations of defendant and thereby received compensation. The first was proved by the plaintiff himself. For what were the station book and the accounts rendered by plaintiff offered and received in evidence if not to prove the third and fourth ? There was evidence to warrant submission of the second. The plaintiff did furnish his warehouse. Form 43 contemplated such furnishing. Taylor’s testimony tended to show no one would have been’appointed who had none. If the third and fourth were found, the jury ought to have found that the warehouse was furnished free of rent. The point was not refused for want of evidence of any fact to warrant the jury in finding it, but for a very different reason plainly expressed. Yet its affirmation would have assumed no fact nor have taken‘any evidence from the jury. In view of the clear presentation of almost every other phase of the case we think it should have been affirmed. If considered objectionable because of repetition of the words “rules and regulations,” obviously in a differ-*72sense, it would have been better to have simply refused. The added words may have turned the jury from consideration of the evidence tending to prove the facts mentioned in the point. However, the defendant was entitled to have the proposition given to the jury, and if it was so framed that the court deemed its simple affirmance liable to mislead, they could have given it in their own language, as they did when answering another.
Judgment reversed, and venire facias de novo awarded.