of approximately $50 more than it was entitled to, which could have been refunded to the shipper and everybody would have been satisfied. By its failure to present a proper bill, its refusal to accept the tender of $265.42 in partial payment, its instruction through its agent to McKenzie to pay the money to Gloor-Ortman, its subsequent ratification of the action of the agent, as evidenced by its long-continued efforts to collect from Quinn and Gloor-Ortman, and by its subsequent delay of more than five years in demanding payment from the consignee, the McKenzie Company, by reason of having paid the money to the shipper, now claims the railroad company is estopped from demanding the freight and demurrage charges at this late date.

than the rates so published. The language of both sections is so broad and comprehensive as to leave no doubt that all forms of discrimination are to be scrupulously avoided.

Before the enactment of this law, discrimination was so general, and indulged by so many vices and devices, that the courts very properly conceived the notion that it was necessary to be very strict in requiring carriers to collect freight and demurrage charges for transportation service. It has therefore been declared, that, even though the agreement between the shipper and consignee requires the shipper to pay the freight, nevertheless an acceptance by the consignee would raise the implication of a contract on the part of the consignee to pay the freight, as between the consignee and the carrier, The cause was tried before the court and and it has also been held, even though the jury, but, the facts being either admitted or agreement between shipper and consignee reclearly established, both plaintiff and defend-quires the consignee to pay the freight, that ant moved for judgment, and after due con- by the mere fact of delivery of the property sideration the trial judge awarded judgment to the carrier an implication arises against for defendant and dismissed the petition. The judgment was affirmed by the court of appeals and has been admitted to this court upon motion to certify.

Robert C. Porter, L. J. Hackney, and H. N. Quigley, all of Cincinnati, for plaintiff in

error.

Marriott, Freshwater, Wickham & Marriott, and F. M. Marriott, Jr., all of Delaware, for defendant in error.

the shipper for payment of the charges. The carrier was therefore in the very comfortable position of being able to collect from either the shipper or consignee as a guaranty that freight charges would be ultimately paid. And all this was deemed essential in order that the carrier might not by any device or by any promise facilitate the evil of discrimination. It has also been declared in numerous cases which need not be reviewed that the published tariffs of rates and charges become a part of the contract of transportation, which shall be read into the contract, and that therefore, if a mistake is made in calculating the charges, the mistake can be corrected and future charges collected, notwithstanding a receipt may have been given in full, and notwithstanding the fact that in many cases the shipper or consignee may have suffered loss thereby. All this is perfectly sound upon the theory that the published. rate is a part of the contract, and a part of the law of the land, and that shippers and consignees are charged with notice and knowledge of the service to be rendered and the charges to be made therefor, as set forth in said published tariffs.

MARSHALL, C. J. This being an interstate shipment, a federal question is presented, involving not only an interpretation of the interstate commerce act but also certain policies which have been declared by the federal courts, and more especially by the Supreme Court of the United States, which policies the courts have found necessary to pursue in carrying out the declared purposes of the act to prevent discrimination among shippers. It involves the interpretation of sections 2 and 6 of the Commerce Act. Section 2 (41 Stats. at L. 479; Section 7885, Barnes' Fed. Code [U. S. Comp. St. Ann. Supp. 1923, § 8564]) provides in substance that a common carrier shall not directly or indirectly pay, demand, collect, or receive It has also been declared in many cases from any person a greater or less compensa- that a contract between a carrier and shiption for any service in transportation than it per for a service not covered by the pubcharges, demands, collects, or receives from lished tariff is illegal and unenforceable, and any other person for a like service in trans- that a contract between the carrier and a portation. Section 6 (41 Stats. at L. 483; consignee for compensation less than that Section 7890, Barnes' Fed. Code [U. S. Comp. stipulated in the tariff does not create an St. Ann. Supp. 1923, § 8569]) provides in sub- estoppel, because the contract itself is illestance that every carrier shall file with the gal, and therefore no estoppel can be predinterstate commerce commission schedules icated thereon. This is the spirit and the of its rates, fares, and charges for transpor- pronouncement of N. Y. C. & H. R. Co. v. tation between different points on its own York & Whitney Co., 256 U. S. 406, 41 S. Ct. route and connecting routes, and further pro- 509, 65 L. Ed. 1016; Keogh v. C. & N. W. vides that carriers shall not demand, collect, Ry., 260 U. S. 156, 43 S. Ct. 47, 67 L. Ed. 183; or receive a greater or less or different com- P. C. C. & St. L. Ry. Co. v. Fink, 250 U. S. pensation for any service in transportation | 577, 40 S. Ct. 27, 63 L. Ed. 1151; L. & N.

(147 N.E.)

Rd. Co. v. Maxwell, 237 U. S. 94, 35 S. Ct. 494, 59 L. Ed. 853, L. R. A. 1915E, 665; and the many cases cited with approval in the last-named case.

Certain principles connected with this subject have become well established, and, having been laid down by the federal courts, in which a federal question was involved, the same should be scrupulously followed by the courts of the several states. Among these principles the following may be enumerated: [2] The proper and lawful freight and demurrage charges are those fixed by the filed, posted, and published tariff schedules, and those schedules by implication become a part of the contract of carriage. All shippers and consignees are therefore charged with knowledge of such schedules.

There shall be absolute equality of reasonable rates. No excuse which operates as an evasion may be urged as a defense of a proved violation of a lawful rate.

A carrier cannot contract for any service or stipulate for any compensation which is not provided and published in its tariff, and any such undertaking is unenforceable.

The prohibitions of the statute against unjust discrimination relate, not only to inequality of charges and inequality of facilities, but also to giving of preference by means of consent judgments or the waiver of defenses open to the carrier.

The mere fact of delivery to a consignee, by reason of such consignee being on the credit list of the carrier, does not excuse liability for further charges beyond those collected at the time of delivery; neither is the carrier thereby foreclosed against correcting a mistake.

Ordinarily the acceptance of goods by a consignee raises a rebuttable presumption of title and imposes liability on such consignee for all lawful charges under the interstate commerce act.

The mere fact that a consignee is ignorant of the true tariff rate, or that he was even misled by the carrier's agents, will not avail as a defense to an action to recover a lawful charge.

The foregoing principles are stated in order that it may be made clear that those who concur in this decision are not flying in the face of the Interstate Commerce Act, or of the decisions of the United States Supreme Court that have declared the sound judicial policy necessary to be followed in safeguarding discrimination on the part of carriers. These principles are stated as a premise to our conclusion that they are not the controlling principles applicable to the proven facts of this controversy. The purport and meaning of the numerous decisions of the federal courts, and of the courts of last resort of the states which have endeavored to follow the federal courts, are that only one rate shall be recognized, to wit, the lawful pub

'ished rate, and the underlying principle of those cases where additional charges have been collected after a mistake has been made is that the consignee, or shipper, is presumed to know the law, and is therefore charged with knowledge of the lawful rate. It may therefore be conceded that, even though the consignee had made a remittance to the shipper on the faith of the payment by him to the carrier of a sum less than the lawful charge, and though the payment by him of any additional sum would be a net loss to him of that amount, he would not be heard to complain, because it was his duty to ascertain the lawful rate before making payment.

[1] It may be conceded that the McKenzie Company knew the lawful rate between East St. Louis, Ill., and Delaware, Ohio. This record shows that the correct lawful charge for that shipment was $41.54. Ordinarily the McKenzie Company would have been bound to pay that sum, regardless of any contract between the McKenzie Company and the Gloor-Ortman Company, and regardless of any contract or promises of the Big Four Railroad.

It clearly appears, however, from this record that McKenzie bought this car from the Gloor-Ortman Company at East St. Louis, Ill., without knowledge that the lumber was already on a car in possession of a carrier, and without knowledge of any accumulated charges, which were almost equal to the value of the lumber. No notice of such fact was given and no circumstances appear in this record which would reasonably put McKenzie upon inquiry. The situation was further aggravated by the carrier having waited until acceptance and unloading before presenting the expense bill to the McKenzie Company.

Having purchased a car of lumber from a dealer at a certain point where delivery could be made by a comparatively short haul, can it be said as matter of law, without any statute to that effect, but merely in pursuit of a declared policy of the courts in furtherance of prevention of discrimination on the part of carriers, that the McKenzie Company should be charged with notice and knowledge of a very large amount of previous charges against the car, pursuant to other contracts of carriage, all of which was well known to the carrier, but which it failed to bring to the notice of the consignee until after acceptance and unloading? This question must be answered in the light of the further inexcusable fact that the carrier made a mistake in the amount of the total charges, bringing such total beyond the real value of the merchandise, and in the light of the further incomprehensible refusal of the carrier to accept the full value of the merchandise as a partial payment of such concededly unlawful charge.

This controversy is fraught with the fur

have no just application to the peculiar circumstances herein involved. Those cases do not reach to the extent of making a consignee a guarantor or insurer of claims which accrued prior to the contract of the consignee, where charges are involved which are not brought to his notice, or where circumstances are not shown which would reasonably place the consignee upon inquiry.

ther distressing circumstance that the agent [the instant case, because we think they can not only refused to accept the full value of the merchandise as a partial payment but, when advised that the consignee desired to make settlement at that particular time in order to save a few dollars' discount, told the consignee to make payment for the lumber direct to the shipper and that charges would be collected from that source. It must be conceded that a local agent cannot make a contract for services beyond that covered by the tariff, or agree to a different rate from that stipulated in the tariff schedule, or accept or receipt for an amount less than the legal rate, and this is true not solely because of the want of authority of the local agent but upon the broader ground of illegality, and is therefore forbidden even to the board of directors of the carrier. That proposition is well settled by the authorities, and, if that were the pivotal question in this case, our problem would be a simple one. This controversy, upon that particular issue of fact, takes a much wider range, because the act of the local agent was apparently fully ratified by the carrier. In fact, the carrier continued to omit collection from the consignee, and proceeded to endeavor to collect by legal process both from Quinn and the Gloor-Ortman Company. This action was begun against McKenzie on January 23, 1922, a period of five years and four months after the agent refused to accept the full value of the merchandise as partial payment. The refusal to accept partial payment is wholly inexcusable, because it is well settled by the uniform decisions of a dozen courts that a partial payment or a receipt in full creates no estoppel and does not become a valid defense.

It is further conceded that demurrage charges are collectible from a consignee, and especially all demurrage charges which accrue after the customary free time from delivery of the car to a consignee, but among all the decided cases dealing with the question of demurrage we are not able to find a single one where a consignee has been held liable for demurrage charges accruing while the car is in the control of the shipper. And it is quite certain that no court has decided that a consignee can be held liable for demurrage charges accruing at intermediate points while the car is being shuttled from city to city and being transported by one carrier after another, where the carrier makes no effort to collect either freight or demurrage from intermediate consignees, but, on the other hand, permits all charges to follow, and endeavors to collect from the final consignee, without notice to such consignee and without circumstances calculated to reasonably put him upon inquiry.

This is such an unusual case that we are of the opinion that the perfectly sound principles declared and established by the federal courts and courts of the states upon this subject could not be applied without gross injustice to this defendant in error. While the sum of $41.54 is a perfectly lawful charge It is said that the carrier has a lien upon against McKenzie, and while he was at the the merchandise, and should therefore be time charged with knowledge of the correctpermitted to collect from the consignee beness and fairness of that charge, we are of cause of having released that lien. This principle has no application to this controversy, because the McKenzie Company stood ready and offered to make good that lien by depositing with the carrier the full value of the merchandise upon which the lien had theretofore operated.

the opinion that even that sum should not be collected from him at this late date, under the circumstances enumerated in the foregoing statement of facts. There is no suggestion of any effort on the part of the railroad company, or of this consignee, to attempt a discrimination by any device whatever, and it is a clear case of the consignee doing all in its power to facilitate the collection of the lawful rate and being prevent

the carrier itself.

We are of the opinion, therefore, that this feature of the case does not come within the principle of those cases which have declared that no estoppel can arise out of an unlawful contract.

Having examined all of the cases referred to by counsel for the railroad company, and many others not cited, we are of the opinion that a reversal of this case would established from so doing by the unwarranted act of no principle of preventing discrimination, neither would it serve any purpose whatever, except to make consignees insurers of carriers against loss under any and all circumstances. It is our purpose to give recognition to all the principles established by the Supreme Court of the United States, and we will not hesitate to apply those principles to facts which are similar or even remotely parallel to the facts before that court in the numerous cases brought to our notice; but we are refusing to apply those principles to

In the case of Galveston, H. & S. A. Ry. Co. v. Lykes Bros. (D. C.) 294 F. 968, it was held that, where a carrier forwarded a shipment over a route carrying a higher rate than another route equally available and the party settled the disputed question of freight

(147 N.E.)

in good faith, but not on the basis of any The facts of that case were in all essential lawful tariff, and the carrier afterward respects parallel to the facts of the instant brought suit to recover at the tariff rate, the case, and the opinion of the court gives full carrier could not recover the rate over the recognition to the well-established principle route actually used, but only the lower rate that a shipper or consignee has equal opporwhich should have been charged on the prop-tunity with a carrier to know the published er routing. This principle may well be ap-rate, and that he is conclusively presumed plied to a case where the consignee expected to have such knowledge, and nevertheless disto make payment of a lawful rate from East tinguishes the case, and holds that by the St. Louis, Ill., to Delaware, Ohio, but not facts of that case an estoppel may be created. to pay charges on merchandise which had been shuttled back and forth through several states before beginning its final journey.

14

"On these facts, the trial court was justified in finding that the Central Company did not assume the primary obligation to pay the freight charges.

with the shipper on the part of carriers, and to prevent discrimination against him and preferences to others. That is to say, it was designed to prevent oppression, and we are unwilling in furtherance of that beneficent purpose to go to the length of visiting oppression upon a consignee by compelling the carrier to violate a contract which we conceive to be legal. The contract may have been unwise, and it may have resulted in loss to the carrier, but its unwisdom should not be visited upon the consignee, who has placed himself in a situation where his loss cannot be retrieved, if compelled to respond in this case. The agent may not have been

"It is urged that, if the Central Company was not under a primary obligation to pay the freight charges, it was secondarily liable, because collection from the Smelters Corporation [the consignee] of the balance remaining due had become impossible before the undercharge was discovered. But the trial judge was not compelled so to find. There was evidence that such collection had not become impossible. Confessedly no effort was made to collect from it. Nor was any effort made to collect from Tutwiler & Brooks [the real owners of the merchandise at the time of shipment]. Moreover, if a secondary obligation of the Central Com-authorized to make the contract, but his act was clearly ratified and recognized by his pany was to be implied from the fact of its causing the coke to be received for transporta- principal, for a period of more than five tion, the promise was not necessarily one to years. pay at any time any freight charges which the carrier might find it impossible to collect from the consignee or his assign. The court might have concluded that it guaranteed merely that the consignee or his assign would accept the shipment."

[3] All of the courts in above case having refused to hold the shipper liable, it seems clearly established as the last word of the Supreme Court of the United States that neither shippers nor consignees are to be made guarantors and insurers of carriers against loss under any and all circumstances. It seems to be further clearly established by that case that contracts of carriers which are not inherently illegal, and which have been observed by the other party to the contract, may become the basis of an estoppel where the other party to the contract has acted in such manner as will result in loss to it.

The primary purpose of the Interstate Commerce Act was to compel fair dealing

Further referring to the question of demurrage charges, we are of the opinion that the same are primarily chargeable against the person by whose fault they accrue, and

no decision we are able to find decides the contrary. In the instant case we are not required to go this length, because McKenzie was willing and ready to pay to the limit of his interest in the merchandise, and in a sum which now appears to have been more than the amount required.

We are therefore of the opinion that under the circumstances of this case there should be no recovery against the McKenzie Company even for the charges from East St. Louis, Ill., to Delaware, Ohio, and that the judgments of the lower courts should therefore be affirmed.

Judgment affirmed.

ALLEN, KINKADE, and ROBINSON, JJ., concur.

MATTHIAS, J., dissents.