Hyperlawhypertext legal database Langdon v. N. Y., Lake Erie & Western Railway Co. 27 Abb. N. Cas. 166

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Langdon v. N. Y., Lake Erie & Western Railway Co.

27 Abb. N. Cas. 166 Court N. Y. Supreme Court, General Term, First Department; English

Delivered by Van Brunt, P.J.

Contents

Majority

p. 166
LANGDON v. N. Y., LAKE ERIE AND WESTERN RAILWAY CO.
N. Y. Supreme Court, General Term, First Department;
June, 1891.

Headnote

1. Cause of action.] A series of illegal discriminations by a common carrier at different times against a shipper of goods constitutes but one cause of action, and the several acts need not be separately pleaded. If defendant desires a statement of the precise time and circumstances of each shipment he. should demand a bill of particulars,
2. Pleading; indefinite7iess and U7icertai7ityl\ In an action by a. shipper of goods for damages against a common carrier for discrimination, on motion,—Held, that the complaint was-indefinite and uncertain in merely generally alleging that ther services rendered plaintiffs and those rendered other shippers, and the respective condition, etc, of each were the same, without setting forth the conditions and circumstances of the shipments that were thus compared.
3. ForTns.] Form of a sufficient complaint in an action for damages against a railroad for discriminations against a shipper of coal,
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alleging as separate causes of action: x. Discriminations in the rates for transportation; 2. In compelling plaintiffs to clean and prepare cars; 3. In not providing plaintiffs with cars; 4. In charges for docking and transferring.
Appeal from an order of the special term denying defendant’s motion that the complaint be made more definite and certain and that the several alleged different causes of action be separately stated and numbered.
This action is brought by Andrew Langdon, Sumner W. White and Charles R. Heneage, composing the firm of Andrew Langdon & Co. to recover damages for alleged discriminations made by the defendant, The New York, Lake Erie & Western Railroad Company, against the plaintiffs with reference to the shipment of certain coal.
The discriminations áre alleged to be : (1). Discriminations in the rates charged the plaintiffs by the defendant for such transportation. (2). In forcing the plaintiffs at their own expense to clean and prepare certain cars for the transportation of their coal. (3). In not providing the plaintiffs at certain seasons of the year with the number of cars for the transportation of their coal to which the plaintiffs claim to have been entitled. (4). In discriminating, against plaintiffs with reference to charges for docking and transferring certain of plaintiffs’ coal in the city of Buffalo.
The above constitute the first four causes of action set forth in the complaint. Four similar causes of action are alleged in favor of Andrew Langdon, one of the plaintiffs above named, on shipments of coal made by him prior to the time the plaintiffs’ firm was constituted, and it is alleged that all such causes of action which accrue to Andrew Langdon individually, were by him assigned to the plaintiffs before the commencement of the action.
The complaint upon which the motion was made was an amended complaint, a demurrer having been
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sustained to the original complaint upon the ground that the cause of action was founded upon a Pennsylvania statute to recover a penalty and that therefore it could not be sustained as a common law action ( 58 Hun, 122 ).
After an amended complaint had thereupon been served to obviate that objection, the present motion was made.
The first cause of action of the amended complaint as to the discrimination in the rates of transportation, after alleging (1) the co-partnership of plaintiffs and (2) the incorporation of defendant and (3) that of the Delaware and Hudson Canal Co. and the Hillside Coal and Iron Company proceeded as follows:
IV. That during the period extending from May .1st, 1885, to the time of the commencement of this action, the plaintiffs, as a part of their said business, at all times were engaged in mining and buying anthracite coal at various mines in the region of the Carbondale, Lackawanna and Wyoming anthracite coal fields, in the State of Pennsylvania, and in forwarding the same for sale to the various markets north, east and west, reached by the lines and connections of the defendant; and that during the aforesaid period of time the only available outlet for the plaintiffs’ coal from the said region .to the said markets was by way of said defendant’s lines and connections.
V. That during the aforesaid period, to wit, from May 1st, 1885, to the time of the commencement of this action, the plaintiffs mined, or bought at the mines in .the aforesaid Carbondale, Lackawanna and Wyoming anthracite coal field, 778,753 tons, more or less, of anthracite coal, and delivered the same for transporta» tion to, and the same was transported by, the defendant over its lines and connections from Carbondale and points south thereof to the various markets north, east
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.and west, reached by the defendant’s lines and connections, as aforesaid.
VI. That at all times during the aforesaid period the defendant openly promulgated, announced and published its tariff rates per ton on coal going from Carbondale and points south thereof, to the various markets reached by its lines and connections, and that for carrying plaintiffs’ said coal, as aforesaid, the ■defendant charged to, and demanded and received from the plaintiffs, upon each ton thereof,’the full tariff rates published and announced by said defendant as the general and public rates per ton, upon coal going over defendant’s lines and connections from Carbon-dale and points south thereof to the various points of destination.
VII. That at all times during the said period extending from May ist, 1885, to the commencement of this action the said Delaware Company and the said Hillside Company, as well as certain other corporations and persons, also were engaged in the work of mining anthracite coal from- the collieries owned or -controlled by them respectively in the aforesaid Carbondale, Lackawanna and Wyoming region, and in forwarding the same for sale to the same general markets and by the same route with the coal carried as ¡aforesaid by the defendant for the plaintiffs.
VIII. That upon all of the coal carried as aforesaid by the defendant for said Delaware Company and said Hillside Company and for certain other shippers, the ■said shippers, and each of them, pretended and purported to pay in good faith to defendant for the transportation thereof, and defendant pretended and purported to receive from them, and each of them, therefor, the full published and public tariff rates charged to and paid by the plaintiffs as aforesaid, but that in reality during all of said period the defendant, directly or indirectly, regularly gave and allowed
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to'said Delaware Company and to said Hillside Company, and to each of them, as well as to certain other shippers, in respect to all of the coal transported by the defendant for the latter, or any of them, certain concessions, drawbacks and rebates from the said tariff' rates or prices, published and announced as aforesaid by the defendant, as the rates or prices for the transportation of anthracite coal over its said lines, from and to the aforesaid points, the exact amount of which, said drawbacks, concessions and rebates is unknown fr> the plaintiffs, but which plaintiffs believe and aver to-have been fifty cents per ton upon all, or nearly all, of the coal transported as aforesaid by defendant for said. Delaware Company, and said Hillside Company, and. for certain other shippers during the aforesaid period,, so that, in effect, the tariff rate or freight per ton, on' plaintiffs’ said coal, charged by the defendant to, and. demanded and received by the defendant from the.plaintiffs for the transportation thereof, was fifty cents per ton more than the tariff-rate or freight per ton charged by the defendant too, and demanded and received by the defendant from the said Delaware. Company, and the said Hillside Company, and from certain other shippers for the transportation as aforesaid, of the coal of the latter, or any of them.
IX. That the coal carried by the defendant, as aforesaid, for the plaintiff, was carried from the same place, upon like conditions and under similiar circumstances-, as the coal carried by the defendant, as aforesaid, for said Delaware Company, and said Hillside Company,, and for certain other shippers, and upon which said drawbacks, rebates and concessions in freight charges, were given and allowed by the defendant, as aforesaid,, to the said companies and other shippers ; and that the service rendered by the defendant to the plaintiffs in. the transportation of plaintiffs’ coal was precisely the same or like service as it rendered to said Delaware
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Company and said Hillside Company- and to certain other shippers, in the transportation for them-, or any of them, of the coal upon which said drawbacks, concessions and rebates were given.[1]
X. That during all of the said period, extending from May i, 1885, to the time of the commencement of this action, the plaintiffs, at frequent intervals, complained to the defendant, its officers and agents of, and protested against, said published tariff rates as unreasonable, excessive and burdensome, and repeatedly charged the defendant, its officers and agents with secretly allowing concessions and rebates to other shippers, more especially to the said Delaware Company and the said Hillside Company, and repeatedly demanded of the defendant, its officers and agents, that the transportation service aforesaid be rendered the plaintiffs at the same rates as those which in reality were, or might be, charged to the Delaware Company or to the Hillside Company, or to any other shipper for the same, said, or like service ; but that the defendant, its officers and agents always denied the giving or allowing of any of the said rebates, concessions or drawbacks, and repeatedly and openly announced and declared to the plaintiffs and others, that said published tariff rates or prices were correct and uniformly enforced, and that no rebates, concessions or drawbacks-from the said tariff rates or prices.were allowed or given to any shipper. That the said defendant also secretly arranged and provided with the said Delaware Company and the said Hillside Company and all other favored shippers, that they, and each of them, should withhold, and that each of them did withhold, from the plaintiffs all knowledge of the giving or allowing of the-
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:said drawbacks, concessions and rebates, or any of them.
XI. That by reason of the premises, the plaintiffs were unable to learn, and until shortly before the bringing of 'this action did not learn, although always •endeavoring so to do, of the giving or allowing by the ' -defendant of any, or of the largest and most important of the aforesaid rebates, concessions and drawbacks, to said Delaware Company and said Hillside Company, •or to any other shipper over defendant’s lines and connections, and that the open and public rates charged, as aforesaid, to the plaintiffs by the defendant for carrying their said coal, were paid by the plaintiffs to the •defendant in ignorance of the actual rates charged by the defendant to, and paid to defendant by, said Delaware Company and said Hillside Company and certain other shippers for carrying their said coal. That whenever and as soon as these plaintiffs learned of the giving of any of the said rebates, concessions and drawbacks, they in each instance demanded from the •defendant, its officers and agents, as favorable rates for themselves upon their coal, and always objected and protested to the defendant, its officers and agents, .against paying to defendant the sum or amount represented by such of said rebates, concessions and drawbacks as were known to plaintiffs, and the same was paid to defendant by plaintiffs under continual protest, as being an unreasonable and unjust exaction. That the plaintiffs, moreover, were under continual duress from the defendant, from the fact that the defendant, its officers and agents, at all times refused to carry their said coal, except it were paid the aforesaid full public tariff rates, and plaintiffs had no available means whereby to get their said coal to market other than to pay said full tariff rates.
XII. That the said Delaware Company and the said Hillside Company and certain other corporations and
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persons to whom rebates, concessions and drawbacks-were allowed or given by the defendant as alleged in. paragraphs VIL VIII. and IX. hereof, were large and. continuous shippers of said coal throughout said period,, and that the rates of freight for the transportation thereof in reality paid to defendant by said companies-' and persons, and each of them as aforesaid, that is to-say, rates fifty cents per ton less than the full public; and published rates paid by plaintiffs as aforesaid,, afforded the defendant a fair profit on said business,, and were, and are, a reasonable compensation to-defendant for said or like transportation service.
XIII. That the rates of freight charged by the-defendant to, and paid to defendant by, the plaintiffs; for the transportation of their coal aforesaid, were and are unjust, unreasonable, excessive and extortionate in themselves, and constituted an unjust and unreasonable, discrimination on the part of defendant against these plaintiffs. That by reason of the premises the plaintiffs: have suffered injury and been damaged in the sum of $389,376.50.
For a second cause of action in forcing the plaintiffs; to clean their cars psed for the transportation of coal at their own expense, the complaint alleged as follows, after reiterating the allegations in the first cause of action as to partnership and incorporation; and paragraphs 4 to 9 as to the business of plaintiffs and discrimination against them in defendant’s rates for transportation ; and the secret rebates allowed the Delaware and Hillside Companies.
XV. The plaintiffs further allege, upon information and belief, that the coal carried by the defendant for the-plaintiffs over its lines and connections, as alleged in paragraph V. hereof, was transported, at the require-' ment of the defendant, partly in box and stock cars and partly in so-called coal cars. That the box and stock cars necessarily used by "the plaintiffs for the transpon- ■
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tation of their said coal were 27,563 more or less in number, and that the plaintiffs were obliged by the defendant to furnish lumber for, and to do the work of cleaning and fitting up all of said box and stock cars, so as to put the same in a condition suitable for carrying coal, at the plaintiffs’ own cost and expense, except those used in the transportation of coal from one of the plaintiffs’ collieries, the Belmont.
XVI. That the furnishing the lumber for, and the cleaning and fitting up said box and stock cars, as aforesaid, necessarily involved an expense to the plaintiffs of one dollar per car, and that the plaintiffs, in the course of the transportation of their said coal, fitted up therefor in the manner aforesaid, 26,381 of said cars, more or less, and paid for the same the said sum of one dollar per car.
XVII. That the coai transported by the defendant for said Delaware Company and said Hillside Company and for certain other shippers during the aforesaid period, as alleged in paragraphs VIL and IX. hereof, was likewise transported partly in box and stock cars and partly in coal cars, and that the defendant, at all times, furnished the lumber for, and cleaned and fitted up, wholly at its own cost and expense, all of the said box and stock cars used by said companies, or either of them, as well as those used by certain other shippers.
XVIII. That the said cars furnished and fitted up by the plaintiffs, as aforesaid, were in all respects similar to those of said cars furnished and fitted up by the defendant for the above named shippers, and that the material furnished and the work done were in each case the same.
XIX. That during all of the said period, to wit, from May 1, 1885, to the commencement of this action, the plaintiffs frequently complained to the defendant, its officers and agents of, and protested against being
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obliged to clean and fit up said box and stock cars at their own cost and expense, as aforesaid, and repeatedly ■demanded of the defendant, its officers and agents, that the defendant, free of charge to the plaintiffs, provide the plaintiffs with such cars in a condition suitable for shipping coal therein, in like manner as said cars were provided by the defendant for the said Delaware Company and said Hillside Company and for certain other shippers, but that said defendant, its officers and agents, always and absolutely refused so to do, or to afford the plaintiffs any relief whatever from the said discrimination.
XX. That the work of cleaning and fitting up said box and stock cars by the plaintiffs, at their own expense, as aforesaid, always was done under compulsion from the defendant, and because plaintiffs could "not otherwise obtain from the defendant facilities for transporting their said coal. That the plaintiffs continually protested to the defendant, its officers and agents, against d oing said work at their own expense, as aforesaid, as_,being unjust and unreasonable in itself, and disclaimed any right upon the part of the defendant, its officers and agents, to make such discrimination.
XXL That in and by requiring plaintiffs to do and pay for said above mentioned work, the defendant imposed upon the plaintiffs charges and disbursements which were, and are, unjust and unreasonable in themselves, and unduly and unreasonably discriminated against these plaintiffs, and that the plaintiffs suffered injury and were damaged in ’the premises in the sum of $26,381.
A third cause of action as to defendant not furnishing the plaintiff with cars was alleged as follows: After reiterating the allegations in the first cause of action as to partnership and incorporation ; paragraph 5, as to the business in which plaintiffs were engaged ;
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paragraph 6, as to the advertised rates of defendant and paragraphs 7, g, as to the business of the Hillside and Delaware Companies and the secret rebate allowed them by defendant.
XXIII. And plaintiffs further allege, upon information and belief, that at certain seasons in each year during the period extending from May 1, 1885, to the commencement of this action, the demand for anthracite coal in the various markets reached by defendant’s lines and connections, was greater than at other times, in the same year, and that it was chiefly upon sáles and shipments of coal made during the said seasons of increased demand that plaintiffs relied for making their aforesaid business a profitable one. That during the aforesaid seasons the plaintiffs repeatedly demanded of the defendant, its officers and agents, that the defendant supply them with cars wherein to transport their coal to the various markets, and that, should the defendant be unable promptly to supply, or procure to be supplied, all of the cars which might be desired by the-different shippers from the aforesaid Carbondale, Lackawanna and Wyoming region, that then the defendant supply the plaintiffs with their equitable percentage of the cars at the disposal or under the control of the-defendant, basing the number of cars to be allotted or assigned to the plaintiffs’ collieries upon the ratio which the capacity of such collieries might be found to bear to the aggregate capacity of all the collieries to-be served by the defendant in said region. That the said demands of the plaintiffs were ignored by the defendant, and that the defendant, without any justification or proper excuse therefor, continually failed and refused to furnish or procure to be furnished to the plaintiffs any or a due and reasonable or equitable quota of cars, wherein to transport the coal which they desired to ship, and were prepared to ship, over the defendant’s lines and connections to the various-
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markets. That, on the contrary, at the times aforesaid, many of the cars, and, in some instances, all of the cars, which the plaintiffs desired and demanded from the defendant, its officers and agents, for transporting their said coal, and to which the plaintiffs were entitled from the defendant, as a common carrier of freight, were turned over and allotted to the said Delaware Company and to said Hillside Company and to certain other-shippers, to the exclusion, in large part or in whole, of the plaintiffs, whereby said Delaware Company and said Hillside Company and certáin other shippers were enabled to transport, and did transport, to the various markets over defendant’s lines and connections much more coal than, upon the basis of the relative capacity ¡ of their collieries and the collieries of the plaintiffs, : they were equitably entitled to send to market from said region, and whereby the markets of the plaintiffs were taken from the latter and turned over to the said Delaware Company and Hillside Company and others.
XXIV. That by reason of the aforesaid failure and refusal of the defendant to supply plaintiffs with cars, the plaintiffs during the aforesaid period, frequently were obliged either to close their collieries or to run them at reduced time, so that the output of coal from the collieries owned or operated by the plaintiffs was, for long periods in each year, reduced to one-half, or to less than one-half of the capacity of said collieries; and that the cost of production of coal mined at the said collieries thereby was increased by an amount equal to twenty cents per ton upon all of the anthracite coal mined at the said collieries and shipped over the lines and connections of the defendant by the plaintiffs during the aforesaid period.
XXV. That, by reason of the premises, the defendant unduly and unreasonably discriminated against the
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plaintiffs, and the plaintiffs suffered injury, and were damaged in the sum of $155,750.
A fourth cause of action in discriminating against plaintiffs as to charges for docking and transporting coal in Buffalo was alleged as follows after reiterating the same allegation as in the foregoing cause of action.
XXVII. And plaintiffs further allege, upon information and belief, that a portion of their coal, transported by the defendant, as alleged in paragraph V. hereof, to wit, 328,329 tons, more or less, of said coal, was transported to the City of Buffalo, New York, where certain docks, owned and controlled by the defendant, were situated, and at said docks was transferred, directly and indirectly, by the defendant from cars to boats or to cars of other roads, for transportation to the western markets.
XXVIII. That for docking and transferring plaintiffs’ said coal, as aforesaid, defendant charged to, and demanded and received from, the plaintiffs thirty cents per ton upon each and every ton thereof.
XXIX. That a portion of the coal transported by the defendant for said Delaware Company, as alleged in paragraph VII. hereof, amounting in the aggregate to many thousands of tons, was transported to the City of Buffalo, New York, where certain docks,.maintained and kept in repair by, and wholly at the expense of, the defendant were situated, and at said dock was transferred, directly or indirectly from cars to boats, or to cars of other roads, for transportation to the western markets, and that no charge whatever was made to said Delaware Company by the defendant for said docking and transferring privileges. That the only charge or expense said Delaware Company was subjected to in respect to the docking or transferring of their said coal was the actual expense entailed in and by the handling thereof, which charge or expense did not exceed ten cents per ton.
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XXX. That the charge of thirty cents per ton for docking and transferring plaintiffs’ coal as aforesaid, ■charged by the defendant to, and paid to defendant by, the plaintiffs, was unjust and unreasonable in itself, and constituted an unjust and unlawful discrimination against these plaintiffs and in favor of said Delaware Company, to the extent of at least fifteen cents per ton upon each and every ton of coal docked or transferred by defendant for plaintiffs as aforesaid.
XXXI. That the plaintiffs at all times during the period embraced in this cause of action, to wit, from May ist, 1885, to the commencement of this action, protested to the defendant, its officers and agents, against the payment to the defendant of said thirty cents per ton for the docking and transferring of their .said coal, as a charge and exaction unjust and unreasonable in itself, to the extent of at least fifteen cents per ton, and at all times demanded of the defendant, its •officers and agents that the said docking and transferring of their said coal be done for fifteen cents per ton. That defendant refused and ignored the said demands ■of the plaintiffs, and at all times refused to dock or transfer plaintiffs’ said coal, unless plaintiffs paid the ■defendant therefor, the said sum of thirty cents per ton, and that the said payment, to the extent of fifteen cents thereof, in each instance was made under compulsion unjustly and unreasonably exercised against these plaintiffs by the defendant, and under continual protest on the part of the plaintiffs against such payment.
XXXII. That by reason of the premises, the defendant unduly and unreasonably discriminated against the plaintiffs, and the plaintiffs suffered injury and were damaged in the sum of $49,249.35.
Buchanan & Steele and B. H. Bristow for appellant:
I. The causes of action alleged should be separately
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stated and numbered (Citing Bell v. Merrifield, 109 N. Y. 202 ; Richards v. Kinsley, 14 N. Y. State Rep. 701; Estate of Smith, 15 Id. 435; Gunn v. Fellows, 41 Hun, 257 ; Crim v. Starkweather, 88 N. Y. 339 ; Anderson v. Speers, 8 Abb. N. C. 382 ; Oakley v. Tuthill, 7 Civ. Pro. 339; Wray v. Pennsylvania R. Co., 19 State. Rep. 53 ; Wiles v. Suydam, 64 N. Y. 173 ; Richardson v. Northrup, 66 Barb. 85 ; Forsyth v. Edminston, 11 How. 408 ; Baker Co. v. Donohue, Daily Reg. Jan. 23, 1884, p 164.). II. The complaint should be made more definite and certain. (Allen v. Patterson, 7 N. Y. 478 , Cook v. Warren, 88 Id. 37, 40 ; City of Buffalo v. Holloway, 7 Id. 493 ; Bogardus v. N. Y. Life Ins. Co., 101 Id. 328 ; Wood v. Amory, 105 Id. 281; Taylor v. Atl. Mut. Ins. Co. 2 Bosw. 106 , aff’d 37 N. Y. 275 ; Hammond v. Earle, 58 How. Pr. 426 ; Sprague v. Parsons, 6 Civ. Pro. 26; Stiebeling v. Lockhaus, 21 Hun, 457 ; Gardinier v. Knox, 27 Id. 500 ; Shaffer v. Holm, 28 Id. 264; Swart v. Boughton, 35 Id. Tilton v. Beecher, 59 N. Y 176 ; Dwight v. Germania Life Ins. Co. 84 Id. 493 ; Witkowski v. Paramore, 93 Id. 467; Kelsey v. Sargent, 100 Id. 602; Kerch v. R. Co. 14 N. Y. State Rep. 446; Kearns v. R. R. Co. 17 Id., 692 ; Ottoman v. Fletcher, 23 Abb. N. C. 430 ; Williams v. Folsom, 3 N. Y. Supp. 681 ; Olcott v. Carrol 39 N. Y. 439 ; Kelsey v. Sargent, 100 Id. 602 ; People ex rel Crane v. Ryder, 12 Id. 433; Prindle v. Caruthers, 15 Id. 425 ; Adams v. Holley, 12 How.Pr. 326 ; Arrieta v. Morissey, 1. Abb. N. S. 439; Roediger v. Simmons, 14 Abb. Pr. N. S. 256; Kee v. McSweeney, 15 Abb.N. C. 229 ; Schellens v. Equitable Life Ass. Society, 32 Hun, 235 ; Hassa v. Cutting, 11 State Rep. 891; Ruben v. L. H. Steamship Co. 17 Id. 17; Jackman v. Lord, 56 Hun, 192 Texas Co. v. Fire Co. 12 N. Y. Supp. 900 ; Rothschild v. Ry. Co. 13 Id. 361; Gebhard v. N. Y. L. E. & W. RR. Co., and Pershouse v. same, Daily Reg. Nov. 8, 1888 ; Partridge v. Haley, 20 Weekly Dig. 320; Ottoman v. Fletcher, 23 Abb. N. C. 430 ; 25 Id. 137, with note.)
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Benjamin S. Harmon for respondents :
I. Complaint not “ so indefinite or uncertain that the precise meaning or application ” of its allegations is not apparent (citing Brownell v. National Bank of Gloversville, 13 Weekly Dig. 371; Winchester v. Browne, 54 Hun, 638 ; Rouget v. Haight, 10 N. Y. Supp. 753 ; Jackman v. Lord, 56 Hun, 192 ; Childs v. Tuttle, 15 Civ. Pro. 182; Ball v. Evening Post Pub. Co. 38 Hun, 11 ; Tilton v. Beecher, 59 N. Y. 176 ; Dwight v. Germania Ins. Co., 84 Id. 493 ; Eberhart v. Schuster, 6 Abb. N. C. 141 .
II. Each shipment need not be set forth as a separate cause of action (citing Killmer v. N. Y. C. & H. R. R. Co. 100 N. Y. 395 ; Arrieta v. Morrissey, 1 Abb. Pr. N. S. 439; Roediger v. Simmons, 14 Id. 256 ; Kee v. McSweeney, 15 Abb. N. C. 229 ; Wray v. Penn. R. Co. 19 State Rep. 53 ; Gunn v. Fellows, 41 Hun, 257 ; Oakley v. Tuthill, 7 Civ. Pro. R. 339; Andersons v. Speers, 8 Abb. 382 .

The defendant in this action •claiming that several causes of action are set out in the pláintiff’s complaint sought to have them separately stated, and to have other allegations of the complaint,by which the causes of action were set out in general terms, made more definite and certain.

It is undoubtedly true that a series of transactions are sought to be set out in the' complaint, and form the basis of the recovery. But we do not understand that this necessarily requires a separate statement of each transaction. A party sues to recover the purchase price of goods sold on different dates and upon different •occasions. He states one cause of action covering the whole period, although perhaps each transaction might-be a separate sale. And it has never been held that it was necessary to set out in his complaint, distinctively .and separately, each cause of action. So in an action for a continuing trespass where a cause of action arises

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every day that the trespass continues, an allegation of the continuance of the trespass between certain dates is all that is necessary in order to authorize a recovery of the damages which may have been sustained in any way because of the trespass between those dates. So in the case at bar it is claimed that the plaintiffs’ rights, were infringed by discriminations made against them, by the defendant in the transmission of merchandise between certain periods of time. Now if the defendant desires to know the precise times and circumstances at which these discriminations were made, that seems to be the office of a bill of particulars, in which can be set out with particularity the claims made by the plaintiffs ; and it is not necessary, in a complaint in a case like the one at bar, to state more in detail transactions, which are grouped under a general head.

It is also claimed that the complaint should be-amended so as to set out with definiteness and certainty the facts constituting the causes of action alleged. There seems to be some substance in the objection to-the complaint in this particular.

It is alleged that the services rendered to the plaintiffs and those rendered to other shippers were the same, and were rendered upon like conditions and. under similiar circumstances.

It is apparent that this is a deduction derived' from a comparison of the facts attending the plaintiff’s shipment with those attending the shipments of others. There is no intimation as to what the conditions and circumstances of those shipments were, or any particulars in regard thereto from which the defendant can possibly imagine what the plaintiffs claim the condition and circumstances to have been.

It would seem, therefore, that the complaint should be made more definite and certain in this respect, in order that the defendant may be made aware of the

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conditions and circumstances which form the basis of the charge.

The objection to the complaint wherein it charges that at certain seasons the defendant has failed to furnish to the plaintiffs a due and reasonable quota of cars, etc., does not seem to require that it should state more in detail the facts going to make up this cause of action. Whatever precision the defendant may be entitled to under this branch of the case may be obtained by a bill of particulars showing the details of the claim.

We think, however, upon the point already suggested, the complaint should have been made more definite and certain, and that the order should be reversed in that respect, and the motion to that extent granted, with costs to the appellant of this appeal to abide the final event.

Patterson, J., concurred.

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