The Montgomery advertiser. [volume] (Montgomery, Ala.) 1885-1982, 1906-09-27

hin for Injunction April
goth, 1906 40 So. Rep. 9S1.)
1. Pleadings; Conclusions. - Inc
grounds of relief averred in the bill
and on which an Injunction Is sought
to restrain one light company from
stringing wires upon lNle belonging
to the other light company, are that
there has already been strung on SAID
pole ali the wires 1t would bear with
safety to its service and security to the
people, and that Notwithstanding this
fact and the further fact that the
city ordinances forbade defendant from
interfering with poles and wires OF
complainant. defendant IL attempting
TO string and is stringing wires on
the pole. and unless interfered with
would so string its wires as to result
In frreparable damage to complainant,
and render the pole absolutely dang
erous to the lives of people walking on
the streets: and In addition make II
impossible for complainant to attend
to securing its own wires on the pole,
endanger the lives of its employees. who
are frequently compelled to climb the
pole to repair compiainants wires. and
prevent II furnishing current for lights
TO the people. Neither the size or ca
pacity OF the pole. the number OF wires
wires to each other. nor their location
is alleged. Held. mere conclusions and
subject to demurrer.
O. Injunction: Dissolution; Grounds
considering the averments Of the bflt
together with the, denials and aver
ments of the answer. It is held that the
preliminary injunction should not be
retained until final hearing on the
theory that defendant was seeking TO
take compliments property without
Just compensation.
g. Electric Companies; Franchise:
Arbitration: Agreement.-whcre an
electric company accepts a franchise
under an agreement that its poles may
be used by another company for q
compensation to be agreed upon be-
tween the companies, and In case of
disagr eement the compensation to be
decided by the city electrician, II 10
bound, either to agree as to the COM
pensation, or accept the arbitrament Of
the city electrician, unless such arbi-
trament is shown to be arbitrary or
corrupt.
Appeal from Montgomery City Court
Heard before Hon. A d. Sayre.
Affirmed Opinion by benson. J.
weakley, c. j., HARRISON and Dow
dell, ~. concur.
SOUTHWESTERN ALABAMA RAIL
WAY CO., v. MADDOX & SON.
Money Had and Observation-Disclosures
April 20, 1906. 40 So Rep. %
l. Carriers! recovery OF overcharges:
action, nature of.--An action against a
carrier for overcharges of freight which
consignee was required to pay before
delivery of freight, is not an action
on the contract, but IAN action for
money had and received.
2. Appeal; presumptions; facts not
shown by record.-Where objections are
made to answers, and the questions do
not appear in the record, II will be
presumed ons appeal that the answers
were responsive to the questions. 9
g.. Trial; evidence; time of objection.
Where there is no objection to the
questions, objection cannot be made to
responsive answers, as such objection
comes too late.
4. Carriers; overcharges; action to re-
cover, evidence; admissibility.-Wher
the consignee sues a terminal carrier
to recover for freight overcharges. the
bill Of lading issued by the initial car
rier. showing the proper freight rate.
having been introduced in evidence. 1t
was permissible to permit the treas
urer of the consignor to give evidence
concerning his efforts to collect the
sovercharges, and to introduce in evil
dence correspondence between such
treasurer and defendants agents with
reference to- such overcharges, the de-
PENDANT terminal carrier being the agent
of the carrier issuing the bill of lad
ing
5. Same: payment of overcharges:
involuntary.-Where the carrier with
holds the goods from the consignee I'M
til the payment of the freight and over
charge, such payment cannot be held
to be voluntary
Appeal from Coffee Circuit Court.
Heard before Hon. John P. Hubbard.
Affirmed. Opinion by Dowdell. ].
Weakley. C. j., HARRISON and benson,
JJ.. concur.
MOBILE & OHIO RAILROAD CO.. ".
CHRISTIAN MOERLEIN BREW
ING COMPANY.
Damages for Killing stock-(Decided