contract, and after paying to the said de- | the rents, lut failed to pay the $2,775, as fendant the sum of $1,000, that plaintiff agreed, and thereafter defendant took posseswas unable to procure funds sufficient to sion of the property and sold it to another, make the balance of the cash payment, and whereupon plaintiff sued to recover the $1,was thereby unable to carry out his part of 000, but the court held that, where a party the contract as to the purchase of said land ; advances money in part performance of an that said deed had been placed in escrow; executory contract of sale, and afterwards and that, after the plaintiff had inform- breaches his contract, he cannot recover the ed the defendant that he was unable to money paid. Hansbrough v. Peck, 72 U. S. make the payment to carry out said con- (5 Wall.) 497, 18 L. Ed. 520; Green v. Green, tract, the defendant withdrew the deed 9 Cow. (N. Y.) 46; Glock v. Howard & Wilson, from escrow, and demand was made up- etc., 123 Cal. 1, 55 Pac. 713, 43 L. R. A. 199, on him to refund the $1,000, which he refus-69 Am. St. Rep. 17; Downey v. Riggs, 102 ed to do. This action was brought to recov- Iowa, 88, 70 N. W. 1091. er the $1,000 advanced as part payment on It is contended in the brief of plaintiff in the land. At the conclusion of plaintiff's tes- error that, after default was made by the timony, defendant filed a demurrer, which vendee, there was a mutual rescission of the was overruled, and exceptions saved.

contract, and for that reason the defendant [1, 2] In the case of Battle v. Bank, 5 Barb. would be liable for the money advanced as (N. Y.) 414, it is said:

part payment of such contract. This would “The cases in which a vendee is allowed to re- be true if there were anything in the record cover back the money paid on a contract for the which would substantiate the contention ; purchase of real estate, where the contract has been rescinded, are: First, where the rescission but, inasmuch as the record fails to disclose is voluntary, and by the mutual assent of both facts, either in the pleadings or the evidence, parties, and without the default or wrong of which would support the contention that there either; second, where the vendor is incapable or was a mutual recission of the contract, we unwilling to perform the contract on his part; or, third, where the vendor has been guilty of cannot sustain the judgment. The evidence fraud in making the contract."

shows that all times the defendant was ready, In the case of Baston v. Clifford, 68 111. 67, willing, and able to perform all the condi18 Am. Rep. 547, it is said:

tions of the contract, and that it was through “The cases wherein the vendee may maintain no fault of his that the default was made. an action to recover back money paid by him The taking down of the deed from escrow aftunder a contract for the purchase of real estate, where the contract has been rescinded, are? er the defendant had informed the vendee First, where the rescission is voluntary, and that he was unable to perform his contract with the mutual consent of the parties, and was not such a mutual rescission as would without default on either side; second, where entitle the vendor to recover the money adthe vendor cannot or will not perform the contract on his part; third, where the vendor hasvanced on the purchase price of such land. been guilty of fraud in making the contract; We therefore conclude that the court erred

fourth, where, by the terms of the con- in overruling the demurrer to the evidence, tract, it is left in the purchaser's power to rescind it by any act on his part, and he does it; and the cause should be reversed and refifth, where neither party is ready to complete manded. the contract at the stipulated time, but each is in default."

PER CURIAM. Adopted in whole.
It is said by Sutherland in his work on
Damages (volume 2, p. 585):

(44 Okl. 359) "If a vendee who has partly performed makes default, in consequence of which the sale fails ST. LOUIS & S. F. R. CO. V. MOUNTS. of consummation, he is seldom entitled to relief

(No. 3010.) or compensation for his part performance. He

(Supreme Court of Oklahoma. Dec. 8, 1914.) cannot recover a deposit or the money paid. If the vendor has in his hands a sum paid him on

(Syllabus by the Court.) the contract of purchase largely in excess of the damages sustained by him in consequence of 1. COMMERCE (Ş 8*)-INTERSTATE SHIPMENTSthe loss of the bargain, he may retain it, be

STATE AND FEDERAL LAWS. cause, while the contract subsists, the party in

Since Act Cong. June 29, 1906, c. 3591, default cannot recover it, or any equivalent of $27, 34 Stat. 593 (U. S. Comp. St. 1913, & it, in damages, the vendor not being in default.” 8592), the federal statutes, supplemented by the In the case of Helm v. Rone, 141 Pac. 678, have superseded all state laws pertaining to the

common law as declared by the federal courts, which was a case where the defendant in er- substantive rights of parties to an interstate ror was the owner of real estate in Oklahoma shipment of property; but, in respect to remCity, and entered into a written contract edies and procedure, the state laws are applica

ble in state courts. with the plaintiff in error to sell the same to

[Ed. Note.-For other cases, see Commerce, her, she paying $1,000 on the purchase price Cent. Dig. 5; Dec. Dig. $ 8.*] and agreeing to pay $2,775 on July 5, 1908, 2. CARRIERS (8 177*)-INTERSTATE SHIPMENTS the deed to be put in escrow and be delivered -HOLDER OF BILL OF LADING-RIGHT OF to her on payment of that sum. The contract

ACTION. provided that time was the essence of the $ 7, 34 Stat. 593 (U. S. Comp. St. 1913, &

Under Act Cong. June 29, 1906, c. 3591,

$ contract. Pursuant thereto, the purchaser 8592), the only new right of action given the took possession of the property and collected legal holder of a bill of lading in interstate

[ocr errors]

commerce shipments is against the initial car-8. APPEAL AND ERROR (88 926, 1050*). -Evirier, where the primary cause of liability is up- DENCE (8 474*)-HARMLESS ERROR-COMPEon the subsequent connecting carrier.

TENCY VALUE - PRESUMPTIONS-OPINION [Ed. Note.-For other cases, see Carriers,

EVIDENCE. Cent. Dig. 88 775–789, 791-803; Dec. Dig. Ś

A farmer 70 years old, who has bought, 177.*]

sold, and handled horses, practically all his life,

and who testifies that he knows the market 3. ASSIGNMENTS ($ 24*)-CARRIERS ($ 57*)- | value of his own stallion in question, is prima

CLAIM FOR LOST SHIPMENT-ASSIGNEE OF | facie qualified to state the value of the same. BILL OF LADING-RIGHT OF ACTION.

(a) It is not reversible error to permit such A right of action against an intermediate farmer to state further that he paid $1,500 for or terminal connecting carrier, in an interstate such stallion. shipment, for loss of property in transit re- (b) It appearing that such testimony was givsulting from its negligence is assignable; and en at the place where defendant carrier was where, as a result of such loss, the property bound to have delivered such stallion, and that does not exist, and where the bill of lading em- such witness resided within five miles thereof, bracing the same has been surrendered to the it will be presumed, in the absence of evidence carrier by the shipper in order to obtain de- to the contrary, that such witness referred to livery to him of other property embraced in such place as the place of such valuation. such bill, the assignee may sue in his own [Ed. Note. For other cases, see Appeal and name upon such right of action without showing Error, Cent. Dig. $8 1068, 1069, 1279, 2899, that he is the actual holder of such bill.

3729, 3730, 3735-3747, 4153-4157, 4166; Dec. [Ed. Note.-For other cases, see Assignments, Dig. 88 926, 1050;* Evidence, Čent. Dig. $$ Cent. Dig. $$ 42-46; Dec. Dig. $_24;* Car- 2196–2219; Dec. Dig. § 474.*] riers, Cent. Dig. $8 169-178; Dec. Dig. § 57.*] 9. TRIAL ($ 333*)—VERDICT-CONSTRUCTION. 4. CARRIERS ( 158*)-INTERSTATE SHIPMENT

In an action for $1,700 as the value of a CONTRACT LIMITATION OF LIABILITY-VA. stallion, where the only evidence of value was LIDITY.

the testimony of the owner that the stallion In an interstate shipment of property, a was worth $1,500, a verdict for “the sum of stipulation limiting the carrier's liability to #(12.00) twelve hundred” will be construed to the agreed value of the property is valid, even be a verdict for $1,200. when loss is due to the carrier's negligence, if [Ed. Note.-For other cases, see Trial, Cent. the shipper himself has declared the value, ex- Dig. 88 784, 786; Dec. Dig. $ 333.*] pressly or by implication, the carrier accepting the same in good faith as the real value, and the

(Additional Syllabus by Editorial Staff.) rate of freight being fixed in accordance there- 10. CARRIERS (8 56*)—"BILL OF LADING"-with.

NEGOTIABILITY. [Ed. Note.-For other cases, see Carriers, A “bill of lading” stands as a substitute, Cent. Dig. 88 663-667, 699-70342, 708-710, and represents the goods described therein, and, 718, 71812; Dec. Dig. § 158.*]

although not a negotiable instrument in the

full sense in which that term is applied to bills 5. CARRIERS (S$ 158, 189*)—INTERSTATE SHIP- and notes, the transfer of the bill passes to the

MENT-UNDERVALUATION - CONTRACT LIMI- transferee the transferror's title to the goods TATION OF LIABILITY_VALIDITY.

described. An undervaluation of property in fixing interstate freight rates based upon value, where- Cent. Dig. & 168; Dec. Dig. $ 56.*

[Ed. Note.-For other cases, see Carriers, by the shipper obtains a lower tariff rate than the actual value of the property requires, is

For other definitions, see Words and Phrases, prohibited by law; and a stipulation in a ship- First and Second Series, Bill of Lading.) per's contract for the release of a carrier from liability for loss of the property in excess of

Commissioners' Opinion, Division No. 1. the amount at which such property is so under- Error from District Court, Tillman County; valued, if the carrier has actual knowledge of J. T. Johnson, Judge. such undervaluation, is void, and can neither be made the basis of an action nor of a defense.

Action by John H. Mounts against the St. [Ed. Note. -For other cases, see Carriers, Louis & San Francisco Railroad Company,

, Cent. Dig. $$ 162, 663-667, 699–70372, 708 | for the value of a stallion alleged to have 710, 718, 71842, 854, 855, 859-865; Dec. Dig. been negligently killed in transit in an in&$ 158, 189.*]

terstate shipment. Judgment for plaintiff for 6. CARRIERS (8 189*)-INTERSTATE SHIPMENT $1,200 and defendant brings error. Affirmed. -UNDERVALUATION-ESTOPPEL. Where there has been an unlawful declared

W. F. Evans, of St. Louis, Mo., and R. A. or agreed undervaluation of property in fixing Kleinschmidt, Fred E. Suits, and E. H. Fostariff rates in interstate shipments without the ter, all of Oklahoma City, for plaintiff in eractual knowledge thereof on the part of the carrier, the shipper is estopped to recover more

ror. Mounts & Davis, of Frederick, and Gray than such declared or agreed value.

& McVay, of Oklahoma City, for defendant [Ed._Note.-For other cases, see Carriers, in error. Cent. Dig. $$ 162, 854, 855, 859-865; Dec. Dig. 189.*]

THACKER, C. Plaintiff in error will be 7. CARRIERS ( 163*) — LOSS OF INTERSTATE designated as defendant, and defendant in

SHIPMENT-BURDEN OF PROOF-RELEASE OF error as plaintiff, in accord with their reLIABILITY.

The burden is upon an interstate carrier, spective titles in the trial court. who has negligently lost property in transit, The essential facts, when not stated, are claiming a release to the amount of the ship- necessarily presupposed by the propositions per's declared or agreed value of such property, stated and the questions discussed in this to prove all the facts essential to such defense, including a valid stipulation of release.

opinion, and will therefore be understood. [Ed. Note.-For other cases, see Carriers,

[1] Under section 3898, Stat. 1893, and secCent. Dig. $$ 722-725; Dec. Dig. & 163.*] tion 4268, Stat. 1890 (sections 4681 and 6740,

[ocr errors]

•For other cases seo same topic and section NUMBER in Dec. Dig. & Am, Dig. Key-No. Series & Rep'r Indexes Rev. Laws 1910), a right of action is assigna-, the initial carrier, no one can hare any right ble unless arising out of a pure tort; and, of action inconsistent with that of the owner in the present case, where the right is to re- of the property as evidenced by the receipt or cover of a common carrier for the negligent bill of lading, where there is no judgment killing of a stallion in transit from a place in evidencing such ownership; but, as against another state to Frederick, Okl., the plain- an intermediate or terminal carrier, the right tiff, as assignee of John Cassidy, the owner of action is not necessarily evidenced by the and shipper, is entitled to maintain this ac- receipt or bill of lading, and the owner of tion against the defendant because it arises the property or his assignee of the cause of out of the contract of shipment and is not action is prima facie entitled to sue. a pure tort, notwithstanding the action, as It would seem, if we are correct in assumbrought, is not on the contract and sounds ing that the generally known and uniform in tort. Chicago, R. I. & P. R. Co. v. Bank- practice of such carriers is to require a surers' Nat. Bank, 32 Okl. 290, 122 Pac. 499; render of the bill of lading as a condition Kansas, M. & O. R. Co. v. Shutt, 24 Okl. 96, precedent to a delivery of freight to the con104 Pac. 51, 138 Am. St. Rep. 870, 20 Ann. signee, that the bills in this case were deCas. 255. Also see 1 R. C. L. & 7, p. 321, and livered to the defendant when John Cassidy Hobbs v. Smith, 27 Okl. 830, 115 Pac. 347, 34 received and paid the extra freight charges L. R. A. (N. S.) 697.

for the other and remaining property em[2] Under the Carmack amendment (Act braced in the same shipment at Frederick, June 29, 1906, c. 3591, § 7, 34 Stat. 593 [U. S. which extra charges the defendant claims Comp. St. 1913, § 8592]), to the Interstate were in correction of an error in weight proCommerce Law (Act Feb. 4, 1887, c. 104, § 20, vided for in such bills. If defendant has 24 Stat. 386), the right of action against an such possession of these bills, it seems certain Initial carrier is extended to cases where the that John Cassidy's assignment of his cause primary cause of liability is upon a subse- of action would operate to give the plaintiff quent connecting carrier and in favor of the the right to sue, such cause of action being lawful holder of the receipt or bill of lading the only right that survives the death of the issued by the carrier; but it is further pro- stallion. Indeed, if the right of action is necvided that such initial carrier may recover essarily in the holder of the bill of lading, it from such connecting carrier “the amount of would seem that such assignment by a holder such loss, damage, or injury as it may be re- would operate as an equitable assignment of quired to pay to the owners of such prop- the bill itself, and constitute the assignee the erty, as may be evidenced by any receipt, equitable holder; and, under the practice in judgment, or transcript thereof." Except as this state, there appears to be no obstacle to to the said extension of the right of action to an action by such equitable holder in his the cases specified above, which is the only own name. We do not understand the state new right given the shipper by the Carmack laws to be superseded by the federal in reamendment, that amendment is merely affirm- spect to remedies and procedure, nor except atory of the pre-existing law in this respect. in respect to the substantire rights of the 36 Cyc. 1073-1077; U. S. v. Barnes, 222 U. S. parties to such shipments. Prigg v. Pennsyl. 513, 32 Sup. Ct. 117, 56 L. Ed. 291; Hendrix vania, 16 Pet. 539, 10 L. Ed. 1060; Bank of v. U. S., 219 U. S. 79, 31 Sup. Ct. 193, 55 L. Alabama v. Dalton, 9 How. 522, 13 L. Ed. , ,

. Ed. 102; Great Northern R. Co. v. U. S., 242; Dulles v. Jones, 9 How. 530. 13 L. Ed. 208 U. S. 452, 28 Sup. Ct. 313, 52 L. Ed. 567. 245; McGoon v. Scales, 9 Wall. 23, 19 L. Ed.

[10] Under the former law, as well as the 545. present law, bills of lading stood as the sub- [8, 9] A farmer 70 years old, who has stitute and representative of the goods de- bought, sold, and handled horses practically scribed therein, and, although not "negotia- all his life, and who testifies that he knows ble instruments” in the full sense in which the market value of his stallion, is prima facie that term is applied to bills and notes, the qualified to testify as to the value of the transfer of the bill passed to the transferee same; and it was therefore not error to perthe transferror's title to the goods described. mit John Cassidy to so testify in this case. 6 Cyc. 424; 4 Elliott on Railroads, 1426, 1428; St. Louis & S. F. R. Co. v. Young, 30 Okl. 1 Hutchinson, Carriers (30 Ed.) 175; The Car-588, 120 Pac. 999. los F. Roses, 177 U. S. 655, 20 Sup. Ct. 803, Nor was it reversible error to permit him 44 L. Ed. 929; The Telegraph v. Gordon, 14 to testify that he paid $1,500 for the stallion Wall. 258, 20 L. Ed. 807; Conard v. Atlantic three years before it was killed. H. L. BurInsurance Co., 1 Pet. 386, 7 L. Ed. 189; Pol-gess and another v. Felix, 140 Pac. 1140. lard v. Vinton, 105 U. S. 7, 26 L. Ed. 998: It appearing that Mr. Cassidy at the time North Pennsylvania R. Co. v. Commercial lived at (or within five miles of) Frederick, Nat. Bank, 123 U. S. 727, 8 Sup. Ct. 266, 31 which was the place of destination of the L. Ed. 287.

stallion when negligently killed, and the place [3] As against an intermediate or termi- where the trial was held, it will be presumed, nal carrier, it may be that, by reason of such in the absence of anything appearing to the designation of the lawful holder of the bill contrary, that his testimony given in such lion referred to its value at such place; and, the initial carrier knew the stallion was there was therefore no error in this respect. worth more than $100 and should not be shipLachner Bros. V. Adams Express Co., 72 Mo. ped at a released value rate. See all cases App. 13.

last above cited, and especially the follow[7] The burden is upon the defendant ing: Adams Express Co. v. Croninger, supra;

[7 carrier, claiming release by stipulation with Wells Fargo & Co. v. Neiman Marcus Co., the shipper from liability for any amount in supra; Kansas City Southern Ry. Co. v. Carl, excess of $100, which is less than the actual supra; and Atchison, T. & S. F. Ry. Co. v. value of the property, in an interstate ship- Robinson, supra, which reverses same case ment, to prove all the facts essential to such in 36 Okl. 435, 129 Pac. 20, and which was defense. 4 R. C. L. 920; Louisville & N. R. authority for reversal of Atchison, T. & S. Co. v. Tharpe, 11 Ga. App. 465, 75 S. E. 677; F. Ry. Co. v. Moore, 36 Okl. 433, 129 Pac. Irby v. Southern Express Co., 96 S. C. 354, 24, in the United States Supreme Court. 80 S. E. 613; International & G. N. R. Co. A schedule of freight rates duly filed with et al. v. Rathblath et al. (Tex. Civ. App.) 167 the Interstate Commerce Commission, which S. W. 751. And, of course, he must show a has not been suspended nor disapproved, fixes valid release of liability for the actual loss and determines the legal rates that must be sustained in excess of said $100. 4 R. C. L. charged for interstate shipments. In the 920.

Matter of Released Rates, 13 Interst. Com. [4-6] Under the Carmack amendment (Act Com’n R. 550; Kansas City Southern Ry. Co. June 29, 1906, c. 3591, § 7, 34 Stat. 593 [U. S. v. Carl, supra, and other federal cases cited Comp. St. 1913, 8 8592]) to the Interstate Com- above. merce Law (Act Feb. 4, 1887, c. 104, $ 20, 24 Good faith is required in applying the legal Stat. 386) these statutes supplemented by rates to commodities; and any contract inthe common law as declared by the federal tentionally made for an interstate shipment courts, where such common law is not incon- of freight upon a false classification or unsistent with such statutes, are the sole meas- dervaluation, and therefore at more or less ure of the rights and duties of both shipper than the legal rate, is illegal and void in and common carrier in interstate shipments this respect. See cases already cited, espeof property. Adams Express Co. v. Cronin- cially the two last above, and Wells Fargo ger, 226 U. S. 491, 33 Sup. Ct. 148, 57 L. Ed. & Co. v. Neiman-Marcus Co., supra. 314, 44 L. R. A. (N. S.) 257; Wells Fargo Rebating and false billing are prohibited & Co. v. Neiman Marcus Co., 227 U. S. 469, and made criminal offenses. U. S. Comp. 33 Sup. Ct. 267, 57 L. Ed. 600; Kansas City St. 1913, $ 8574; Kansas City So. Ry. Co.

. Southern Ry. Co. v. Carl, 227 U. S. 639, 33 v. Carl, supra; Great Northern R. Co. v. Sup. Ct. 391, 57 L. Ed. 683; Missouri, K. & O'Connor, supra; Atchison, T. & S. F. R. Co. T. Ry. Co. v. Harriman Bros., 227 U. S. 657, v. Robinson, supra. 33 Sup. Ct. 397, 57 L. Ed. 690; Great North- A stipulation, limiting the carrier's liability ern Ry. Co. v. O'Connor, 232 U. S. 508, 34 to the agreed value of the property, is valid, Sup. Ct. 380, 58 L. Ed. 703; Chicago, R. I. even when loss is due to the carrier's negli& P. Ry. Co. v. Cramer, 232 U. S. 490, 34 Sup. gence, if the shipper has himself declared the Ct. 383, 58 L. Ed. 697; Atchison, T. & S. F. value, expressly or by implication, the carRy. Co. v. Robinson, 233 U. S. 173, 34 Sup. rier accepting the same in good faith as the Ct. 556, 58 L. Ed. 901; also, Chicago, R. I. & real value, and the rate of freight being fixed P. Ry. Co. et al. v. J. E. Harrington et al., in accordance therewith. In the Matter of 143 Pac. 325; St. Louis & S. F. R. Co. v. Released Rates, 13 Interst. Com. Com'n R. Bilby, 35 Okl. 589, 130 Pac. 1089; Missouri, 550; also Adams Express Co. v. Croninger, K. & T. Ry. Co. v. Walston, 37 Okl. 517, 133 supra, and other cases next following same. Pac. 42; St. Louis & S. F. Ry. Co. v. Zicka- The actual value of property is the only foose, 39 Okl. 302, 135 Pac. 406.

lawful basis in fixing interstate freight rates A common carrier engaged in interstate upon value; and a stipulation, limiting a

; commerce may limit his liability to a value carrier's liability to an undervaluation by the of the property declared or agreed to by the shipper in consideration of a reduced freight shipper, when the contract is fairly entered rate, is void if the carrier accepted such uninto for the lawful freight rate, and neither dervaluation and gave such reduced rates rebating, false billing, discrimination, nor with actual knowledge thereof. In the Matpreference is chargeable to such carrier. See ter of Released Rates, supra; Adams Express cases last above cited.

Co. v. Croninger, supra; and other cases Although a horse killed was worth $1,200 next following same. or $1,500 a transportation contract between In Adams Express Co. v. Croninger, supra, the owner and the defendant, limiting the de- which cites 13 Interst. Com. Com'n R. 550, the fendant's liability as carrier to an agreed carrier did not know the value of the propervalue of $100, is ordinarily valid and bind-ty, and the shipper was denied the right to ing; but, in action for more damages, such recover more than the declared value, uplimitation appears from the above cited cases on which he obtained a lower rate, in conto have been allowed and allowable as a de- sideration of his release of the carrier from fense only upon the grounds of and when the liability above that amount, upon the ground facts show an estoppel. In the present case of estoppel only. The other cases cited above,

[ocr errors]

following the Croninger Case, have denied at or agrees (as the initial carrier did in the shipper's right to recover more than his the present case) to the same, and takes a declared value upon the same ground. release from liability in excess thereof as a

In Kansas City S. R. Co. v. Carl, supra, part of such contract, he or any succeeding which also cites 13 Interst. Com. Com'n R. carrier will not be permitted to plead such 550, it is said:

void release as an estoppel to a recovery "But when a shipper delivers a package for of the full amount of his damages in an acshipment and declares the value, either upon re- tion by the shipper, sounding in tort, for the quest or voluntarily, and the carrier makes a negligent loss, damage, or injury. 16 Cyc. rate accordingly, the shipper is estopped, upon plain principles of justice, from recovering, in 720-721; also Id. 706–708.

720-721; also Id. 706–708. Neither an accase of loss or damage, any greater amount. tion nor a defense can be predicated upon The same principle applies if the value be de- such illegal provisions of the contract; but clared in the form of a contract. If such a valuation be made in good faith, for the purpose the right of the defendant to predicate his of obtaining the lower rate applicable to a ship- defense upon it is alone involved here. ment of the declared value, there is no exemp- We now come to consider a stipulation to tion from carrier liability due to negligence for the same effect in the other contract relied ited to a recovery of the value so declared. upon by the defendant as limiting its liability The ground upon which such a declared or to $100. In this second contract, that is, the agreed value is upheld is that of estoppel. one made by the shipper directly with the *** The valuation declared or agreed upon defendant at St. Louis for the remainder of as evidenced by the contract of shipment upon defendant at St. Louis for the remainder of which the published tariff rate is applied must the route of transit, the liability of the car. be conclusive in an action to recover for loss rier is limited to the declared value of $100; or damage a greater sum. In saying this we but the value of the four cows does not aplay on one side, as not here involved, every question which might arise when it is shown pear to have been declared or otherwise that the carrier intentionally connives with the agreed, and the stipulation of release from shipper to give him an illegal rate, thereby caus- excess liability therefor appears void. St. ing a discrimination or preference forbidden by the positive terms of the act of Congress and Louis & S. F. R. Co. v. Ostrander, 66 Ark. made punishable as a crime. * When 567, 52 S. W. 435. In the printed matter on th

are two published rates, based upon dif- the back of the bill of lading, it is recited ference in value, the legal rate automatically at-thattaches itself to the declared or agreed value.

. Neither the intentional nor accidental misstate "ratings given herein are based upon declared ment of the applicable published rate will bind valuations by shippers not exceeding the follow

ing: the carrier or shipper. The lawful rate is that which the carrier must exact and that which will, in all instances, see that shipper's valua

* Each cow $30.00.

Agents the shipper must pay."

tions are filled in in blank spaces left for that In Wells Fargo & Co. v. Neiman Marcus purpose in application attached to the conCo., supra, it is said:

tract. This defense rested upon the mis

But the value of these cows was omitted representation as to the real value declared only from the blank space in the application inin the carrier's receipt, and therefore involved tended for such valuation when declared or the consequences of the undervaluation by agreed upon; and we do not think the rewhich an unlawful rate . . . did declare cital on the back of the contract a part of

* and represent that the value did not exceed that the contract itself, in view of such omission sum, and did obtain a rate which he is to be and the nature of such release stipulations. assumed to have known was based upon that A stipulation in a contract between a shipas the actual value."

per and a carrier that no action for the reIn Missouri, K. & T. Ry. Co. v. Harriman covery of "any claim" by virtue of such conBros., supra, it is said:

tract shall be sustainable unless commenced “If he (the shipper) knowingly declares an within six months next after the cause of undervaluation for the purpose of obtaining the action shall accrue is valid and binding, un

, tains an advantage, and causes a discrimination der the Carmack amendment, cited supra. forbidden and made unlawful by the first sec- Missouri, K. & T. Ry. Co. v. Harriman Bros., tion of the Elkins Act of February 19, 1903."

supra. But, as such contractual limitation Also see Webster v. Union, etc., Co. (D. C.) was not specially pleaded nor in any manner 200 Fed. 597, and Atchison, T. & S. F. R. Co. put forward as a defense in the trial court, v. Rodgers, 16 N. M. 120, 113 Pac. 805, as to although appearing from one of the contracts distinction between an arbitrary and inade- attached as an exhibit to the defendant's anquate valuation and an agreed valuation. swer and introduced in evidence by it, the

These cases show that the consideration same may not be here urged for the first which a carrier receives for giving the lower time. Betz v. Wilson, 17 Okl. 383, 87 Pac. of two rates is not a limitation of liability to 844; Texas & P. Ry. Co. v. Reeves, 90 Tex. an undervaluation of the property, but to its 499, 39 S. W. 564; Frey v. N. Y. Cert. & H. conclusively fixed actual value which the Ry. Co., 114 App. Div. 747, 100 N. Y. Supp. carrier thus knows before the carriage is 225; Louisville & N. Ry. Co. v. Cunningham, begun and the protection it thus bas against 88 Ill. App. 289; Michalitschke v. Wells Farclaims in excess thereof.

go & Co., 118 Cal. 683, 50 Pac. 849; Gibson And if the carrier, knowing of such under-v. Atlantic Coast Line Ry. Co., 88 s. C. 300,

« ForrigeFortsett »