commission. At the trial plaintiff called for the production of this agreement, and in reply to the call defendant's counsel stated they had no such agreement, and officials of defendant, called for cross-examination, denied all knowledge of the existence of such contract. Other witnesses also testified Boyd & Co. were agents for defendant company; and it appears freight on coal purchased by others than Boyd & Co. was always paid direct to defendant, while on purchases from Boyd & Co. it was paid to them. Although the testimony of Downing was not definite as to the period of time covered by the contract of agency which he claims to have seen, and he was not clear whether the agreement was a new one or the renewal of a former one, his testimony, with the other evidence in the case, was sufficient to submit to the jury on the question whether or not Boyd & Co., were agents of defendant for receiving freight charges. Hertzler v. Geigley, 196 Pa. 419, 46 Atl. 366, 79 Am. St. Rep. 724; Singer Manufacturing Co. v. Christian, 211 Pa. 534, 60 Atl. 1087. [2, 3] The court below in its opinion refusing a new trial limited the damages to a period of six years preceding the beginning of the suit, thus holding plaintiff had not met the burden imposed upon him of proving facts sufficient to take the case out of the statute of limitations. Campbell's Adm'r v. Boggs, 48 Pa. 524. The evidence relied upon by plaintiff for this purpose was, inter alia, an interview by himself with William H. Joyce, defendant's general freight agent, on November 1, 1893, when the following conversation took place: "A. I called on Mr. Joyce and stated to him that there was somebody underselling us in coal, and we could not hold our trade, and I thought they must have a lower rate of freight or a rebate, and he assured me we were all paying the same rate of freight, and that no rebates were being paid to any one. I told him I could not understand it because they were offering coal from 25 to 50 cents a ton lower than we were, on the same coal, shipped by the same people, so he says, 'I cannot do anything for you Mr. Hall,' and he never did. Q. You told him where your coal was coming from A. Yes, sir. Q. From where, what did you tell him? A. Pennsylvania Railroad Company coal, Lehigh and Wyoming regions. Q. What did you tell him; did you tell him you were paying Boyd the freight? A. Told him we paid Mr. Boyd for his coal and freight. Q. And he said nobody was getting any better rates than you? A. Yes, sir. Q. Did you believe what Mr. Joyce told you? A. I certainly did." acts were committed, and there was no fraudulent concealment of the prior act. In the latter case, there was a promise to plaintiff that in the future he would receive the same concessions as other shippers, and a breach of this promise was held not such a fraudulent concealment as would toll the statute. Mere silence or failure to keep a promise is not sufficient to stop the running of the statute of limitations. There must be a separate and distinct act of concealment. Smith v. Blachley, 198 Pa. 173, 47 Atl. 985, 53 L. R. A. 849; Cloyd v. Reynolds, 44 Pa. Super. Ct. 81. But where some affirmative act of concealment takes place it is not material whether the concealment is previous, or subsequent, to the beginning of the cause of action. The question is whether there was a design to prevent the discovery of the facts which gave rise to the action and whether the act operated as a means of concealment. Whitesell v. Strickler, 167 Ind. 602, 78 N. E. 845, 119 Am. St. Rep. 524; Boyd v. Boyd, 27 Ind. 429; Jackson v. Jackson, 149 Ind. 238, 47 N. E. 963. In Cook & Wheeler v. Chicago, Rock Island & Pac. Ry. Co., 81 Iowa, 551, 46 N. W. 1080, 9 L. R. A. 764, 25 Am. St. Rep. 512, it was held a statement that no rebates or concessions were allowed any shipper was sufficient to toll the statute. The statement of Joyce, that no rebates were being given, was calculated to deceive by preventing inquiry as to rebates, both before and after the time of the interview. While no rebates may have been given at the precise moment plaintiff and Joyce met, and the statement may, therefore, have been true in a literal sense, yet plaintiff's inquiry, and Joyce's answer, were not limited to that exact time, but referred to a general practice of rebating, both before and after their interview. The statement was therefore untrue in a broader sense, and the one in which plaintiff must have understood it, and amounted to an affirmative act of concealment of a course of rebating which the jury found existed before, at the time of, and subsequent to, the conference. The answer tended to disarm suspicion and prevented inquiry as to past, present, and future rebating. In addition to the evidence of the interview with Joyce, there was evidence that about the same time Boyd, found by the jury to be defendant's agent, told plaintiff all dealThe court below held this conversation in- ers were getting the same rates, and Downsufficient to toll the statute on the grounding testified the rebates to him were paid that mere denial of guilt did not necessarily amount to a fraudulent concealment of the wrongful act, nor did such denial convert the original wrong into a fraud, relying upon the case of Despeaux v. Penna. R. R. Co. (C. C.) 87 Fed. 794, and Mitchell Coal & Coke Co. v. Penna. R. R. Co., 241 Pa. 536, 88 Atl. 743. In the former case the inquiry concerning the acts referred to the time of the in through a third person in order to conceal the transaction, and that in 1907 he was directed by one of defendant's officials to destroy all his records showing rebates. [4] While the instructions to destroy the records were subsequent to the time of the discovery of the fraud by plaintiff, they may properly be considered as tending to support other evidence of bad faith from the & S. 553; McHugh v. McHugh, 186 Pa. 197, | not by virtue of a distinct cause of action, 40 Atl. 410, 41 L. R. A. 805, 65 Am. St. Rep. 849; Com. of Penna. v. Marion, 232 Pa. 413, 423, 81 Atl. 423. On the whole, we deem the evidence sufficient to warrant the conclusion of the jury that there was such active concealment by defendant as to toll the statute of limitations. [5] The fact that defendant had been paying rebates was discovered by plaintiff in September, 1905, and this suit was brought February 21, 1906. The original statement of claim is for damages to the extent of $100,000 which plaintiff alleges he suffered by reason of the unlawful payments of rebates by defendant to other shippers. There is no express reference in this statement to Act June 4, 1883 (P. L. 72), but defendant's acts are alleged to be "in violation of the Constitution of Pennsylvania and the statutes passed in pursuance thereof." On May 8, 1909, an amendment was filed, which alleged defendant's acts were "in violation of the Constitution of Pennsylvania and statutes passed in pursuance thereof, and particularly Act June 4, 1883 (P. L. 72)." This amendment contains no express statement that the claim is for treble damages. During the trial of the case on April 18, 1913, an amendment was offered, but refused by the trial judge, increasing the amount of damages claimed to $400,000, and alleging plaintiff "is entitled to and seeks to recover three times the actual damages suffered by him, in accordance with the statutes in such case made and provided." Subsequently to the verdict, on May 1, 1913, a motion to increase the verdict by imposing treble damages was made and refused by the court below. The right of plaintiff in a suit under the act of 1883 to have damages trebled on motion has been recognized by this court in a number of instances, the only question in such case being whether or not the jury in the verdict rendered had or had not included treble damages. One of the most recent decisions is the case of Cox v. Penna. R. R. Co., 240 Pa. 27, 87 Atl. 581, where it is said: "The verdict for single damages was conclu sive as to the question of undue and unreasonable discrimination. This left nothing to be con sidered by the jury in connection with the trebling of the damages. The statute made provi sion for that." The action of the court below in the present case makes it clear that no treble damages were included in the verdict, and the question, therefore, is whether the amendment offered at the trial, followed by the motion for treble damages, sets up a new cause of action which was barred by the statute of limitations, because the claim was not made within six years following the time the fraud was discovered in September, 1905. The proposed amendment of April 18, 1913, increases the damages claimed in the first paragraph of the statement of claim to but merely increases the amount of plaintiff's claim for the cause already alleged in the original statement. The amendment is, therefore, within the rule that an increase in the measure of damages claimed is not a new cause of action, and may be allowed even after the statute of limitations has run. In Armstrong & Latta v. Philadelphia, 249 Pa. 39, 94 Atl. 455, an amendment which introduced an additional element of damage drawn out of the same circumstances was held proper after the statutory period, and in Puritan Coal Mining Co. v. Penna. R. R., 237 Pa. 420, 85 Atl. 426, Ann. Cas. 1914B, 37, an amendment claiming a larger amount of damage as a consequence of certain acts of illegal discrimination in the distribution of coal cars was permitted to be made after the statutory period. The amendment in the present case was proper, therefore, in so far as the increase of the amount of claim to $400,000 is concerned. An [6] The amendment sought to be made at the trial claiming treble damages stands on a different footing. An action of trespass at common law is brought to recover compensation for the injuries sustained by plaintiff by reason of defendant's wrongful acts. action under a statute like the one in question is brought to recover the penalty imposed by the act, and an amendment changing the form of action from one at common law to an action under the statute for a penalty has been uniformly considered by our courts as setting up a new cause of action, and therefore not allowed if the statute of limitations has run at the time the amendment is offered. Mitchell Coal & Coke Co. v. Penna. R. R. Co., 241 Pa. 536, 88 Atl. 743. The trial in this case occurred more than six years after suit was begun, and unless the claim for treble damages was included within the scope of the original statement of claim, or the amendment of 1909, the claim for treble damages cannot be allowed. The original statement of claim contains no express reference to any particular statute, but merely refers to the violation of the provisions of the Constitution and statutes passed in pursuance thereof. The amendment of 1909 charges a violation of the Constitution and statutes in the same general language, but adds "particularly Act June 4, 1883 (P. L. 72)," making no express claim, however, for treble damages. Is this a sufficient notice to defendant that the action was brought for treble damages under the provisions of that act? The common-law rule is that where an offense is created by statute and a penalty inflicted, the mere statement of the facts constituting the offense will be insufficient, for there must be an express reference to the statute, as by the words "contrary to the form of the statute," etc., in order that it may appear that plaintiff grounds his case upon, and intends "Any violation of this provision shall make the offending company or common carrier liable to of injury suffered." the party injured for damages treble the amount Pleading (16th Ed.) *237. And where the act | an action to the shipper is the concluding or omission which is the foundation of the sentence of section 2 as follows: suit was not an offense at common law, it is necessary in all cases to conclude "against the form of the statute" or "statutes," or to show at least that the declaration is founded on the statute by introducing the the act is a liability to the party injured for When the only right of action provided by words "de placito transgressionis et contem-treble the amount of the injury, suffered, it ptus contra formam statuti." 1 Chitty, is difficult to see how a reference to the act Pleading (16th Ed.) *387. In Howser & Howser v. Melcher, 40 Mich. 185, which was an action on a statute allowing treble damages for forcible entry, the declaration did not refer to the statute as the basis of plaintiff's right to recover. The court said (40 Mich. 189): "Pleading the statute is stating the facts which bring the case within it, and counting on it, in the strict language of pleading, is making express reference to it by apt terms to show the source of right relied on.' [7] Our own decisions seem to agree that it is sufficient to recite the facts constituting a cause of action within the statute and then follow by a reference to the act itself. In Rees v. Emerick, 6 Serg. & R. 286, 288, which was an action for damages for illegal distraint of goods, it was said: "It is a general principle, that where a statute gives increased damages, the writ should conclude against the form of the statute." In Hughes v. Stevens, 36 Pa. 320, 324, where an action of trespass at common law was brought for damages for cutting timber on plaintiff's land, it was said: "The third error is to the action of the court in trebling the damages found by the jury. The counts in the narr. are in accordance with the common-law actions, and there is in them no reference whatever to the statute under which the recovery of treble damages is claimed. This is undoubtedly an omission which precluded the plaintiff's right to treble the damages. If the statutory action be intended, the defendant should be apprised of it in the usual way, namely, in the narr., so that he may shape his defense accordingly. We have held it to be suffi cient that the narr. conclude with an averment that the trespass was against the act of assembly," etc. The act of June 4, 1883 (P. L. 72), is entitled "An act to enforce the provisions of the seventeenth article of the Constitution relative to railroad and canals." It contains three sections. Section 1 makes unlawful any undue discrimination in freight charges or facilities by common carriers or any officer, superintendent, manager, or agent thereof. Section 2 provides that the charges shall be uniform, and concessions in rates and drawbacks shall be allowed to all alike, and all undue discrimination is forbidden. Section 3, in the language of the Constitution, forbids any president, director, officer, agent, or employé of any canal or railroad company to be interested directly or indirectly in furnishing material or supplies, etc., to such company, and, for a violation of the act In this respect, imposes a penalty of fine or I could fail to notify defendant that the suit was brought to recover treble damages. No other kind of damages are mentioned under the express wording of the statute. Penna. R. R. Co., 241 Pa. 536, 88 Atl. 743, relied upon by defendant, does not establish a different rule, as in that case there was no reference either to the act or to the fact that treble damages were claimed. The case of Mitchell Coal & Coke Co. v. It follows from a consideration of the above cases and the act of 1883 that the amendment proposed on the trial should have been allowed, as it did not introduce a cause of action different from that covered by the previous pleadings. As counsel have agreed on the facts as to shipment of coal, etc., the judgment can be entered as if the amendment had been made. [8] If plaintiff is permitted to recover treble damages under the act of 1883, it would seem he cannot at the same time claim damages for delay in payment of the injury sustained by him under the common law. The remedy given by the act of 1883 is penal in character and will not be construed to include other damages not covered by the wording of the act. In Hughes v. Stevens, 36 Pa. 320, it is said in regard to a similar statute: "The statutory action is cumulative to the tional or alternative remedy, for a resort to eicommon-law remedy, or perhaps rather an opther, would be a bar to the other." In Dunbar Furnace Co. v. Fairchild, 121 Pa. 563, 15 Atl. 656, which was an action to recover damages for cutting timber, it was held error for the court to treble the amount of a verdict which included interest as well as single damages. This case was followed in McCloskey v. Powell, 138 Pa. 383, 400, 21 Atl. 148, 151, where it is said: "The jury found the value of the timber trees, and computed interest thereon at $641.88. The court directed judgment to be entered for three times the value of the timber, and excluded the interest therefrom. The precise point was ruled in Dunbar Furnace Co. v. Fairchild, 121 Pa. 563 [15 Atl. 656], and is clear upon principle. we know of no case in which a penalty bears The treble damages are given as a penalty, and nterest until the plaintiff's right to it has been settled by judgment. The learned judge of the the interest, and entering the judgment for three court below was right, therefore, in excluding times the single value of the trees cut and carried away." Under the above decisions the allowance of damages for delay is inconsistent with the action for statutory penalty under the act of [9, 10] The first question raised by defendant's appeal is whether the measure of damages of a shipper who had not received the benefit of a concession in rates given a competitor is the amount of rebate given the latter. The trial judge charged that if defendant, or its agents, paid rebates or allowances to any other person, which were not also allowed plaintiff, the latter might recover the difference between the amount paid him and the amount he would have paid at the lowest rate charged or received from any person for like services and under similar circumstances and conditions. The correctness of this ruling must depend upon a proper construction of section 2 of Act June 4, 1883 (P. L. 72), which provides that: "No railroad company or other common carrier, engaged in the transportation of property, shall charge, demand or receive from any person, company or corporation, for the transportation of property or for any other service, a greater sum than it shall charge or receive from any other person, company or corporation for a like service, from the same place, upon like conditions and under similar circumstances; and all concessions in rates and drawbacks shall be allowed to all persons, companies or corporations alike, for such transportation and service, upon like conditions, under similar circumstances and during the same period of time. Nor shall any such railroad company or common carrier, make any undue or unreasonable discrimination between individuals, or between individuals and transportation companies for the furnishing of facilities for transportation. Any violation of this provision shall make the offending company or common carrier liable to the party injured for damages treble the amount of the injury suffered." In Hoover v. Penna. R. R. Co., 156 Pa. 220, 27 Atl. 282, 22 L. R. A. 263, 36 Am. St. Rep. 43, an action was brought by a coal dealer to recover the amount of a rebate of a certain sum per ton which was paid to a manufacturing establishment by defendant. The lower court there instructed the jury that plaintiff's measure of damages would be the difference between the charge to the manufacturing company and to plaintiff. This court held the instruction erroneous, saying (156 Pa. 244, 27 Atl. 290, 22 L. R. A. 263, 36 Am. St. Rep. 43): "It does not at all follow that the amount of injury suffered is the difference in the rates charged. It might be, or it might not be, but, in any event, it must be a subject of proof, and there was no proof in the case of the actual damage sustained." "The effect of the rebate was to cause damage to the plaintiff to the extent of the rebate. The services of the defendant company to the Gallitzen Colliery after October, 1899, were similar to those rendered the three favored companies, Altoona, the Glen White, and the Milwood, and the plaintiff was injured to the extent of the rebates allowed these companies." was shows the decisions are not inconsistent with tion of a Colorado statute similar to our own Mitchell Coal & Coke Co. v. Penna. R. R.,viding the conditions and circumstances are the same. This distinction was pointed out 241 Pa. 536, 88 Atl. 743, seemingly contradicts in Penna. R. R. Co. v. International Coal that decision. There the complaint was by Mining Co., supra. Under the above authorone coal shipper of a rebate allowed another, ities, there was no error in the charge in reunder the same circumstances and condi-gard to the measure and proof of damages. tions, and the referee stated the measure of damages was the amount of concession which would have been paid plaintiff had he received the same rebate as the favored shipper. The Hoover Case was cited before the court at that time; the finding of the referee was, however, affirmed, this court saying (241 Pa. 540. 88 Atl. 745): [11] Objection is also made that the state courts are without jurisdiction of an action for unlawful discrimination in freight rates as to such part of the coal which was shipped plaintiff from the Pennsylvania anthracite mining regions by a route which extended for a part of the way into the state of New Jersey; the contention being that juris diction over such shipments is within the exclusive province of the federal courts. The right to regulate commerce between the states is vested in Congress by the Constitution of the United States, and, in so far as Congress has acted with reference to the particular subject-matter, the states are without power to interfere. While the mere creation of the Interstate Commerce Commission, and the granting to it of a large measure of control over commerce between the states, does not, in the absence of action taken by it, destroy the power of the state to regulate incidental matters relating to interstate commerce, and affecting the welfare and convenience of its citizens (Missouri Pacific Ry. v. Larabee Flour Mills Co., 211 U. S. 612, 29 Sup. Ct. 214, 53 L. Ed. 352; Puritan Coal Mining Co. v. Penna. R. R., 237 Pa. 420, 85 Atl. 426, Ann. Cas. 1914B, 37), the question before us in the present case is one of unlawful discrimination in freight rates, which specific subject matter has been covered by federal legislation, and all disputes relating thereto are within the exclusive jurisdiction of the fed eral courts. The cases of the Puritan Coal Mining Co. v. Penna. R. R., 237 Pa. 420, 85 Atl. 426, Ann. Cas. 1914B, 37, Walnut Coal Co. v. Penna. R. R., 237 Pa. 410, 85 Atl. 440, Sonman Shaft Coal Co. v. Penna. R. R., 241 Pa. 487, 88 Atl. 746, and others relied on by plaintiff, were all actions for damages for unlawful discrimination in the furnishing of cars, and it was there held, in effect, that as neither Congress nor the Interstate Commerce Commission had undertaken to legislate concerning the particular subject-matter, which was one of local concern, the federal and state jurisdictions were concurrent, even though the cars were ultimately to be used in interstate commerce. In Clark Bros. Coal Mining Co. v. Penna. R. R. Co., 241 Pa. 515, 88 Atl. 754, the various decisions were discussed by the court below in an opinion which was affirmed on appeal, and it was said the coal, which it appeared was sold f. o. b. cars at the mines, did not become the subject of interstate commerce until actually in transit to points without the state. In this respect the cases are within the express provisions of the Interstate Commerce Act of February 4, 1887, 24 U. S. Stat. 379, c. 104, and its amendment of June 29, 1906, 34 U. S. Stat. 584, c. 3591 (U. S. Comp. St. 1913, § 8563), which prevent the application of the act to the "transportation of passengers or property, or to the receiving, delivery, storage, or handling of property wholly within one state and not shipped to or from a foreign country from or to any state or territory as aforesaid." In the present case the subject-matter is discrimination in rates by the allowance of rebates on coal actually transported, and is clearly within the regulations established by Congress and the Inter outside of the state, in the course of its journey from one point to another within the state, is sufficient to bring it within the definition of interstate commerce, and the exclusive Jurisdiction of the federal courts. This question was decided in the negative in Commonwealth v. Lehigh Valley R. R. Co., 129 Pa. 308, 18 Atl. 125, and affirmed in Le high Val. R. R. Co. v. Penna., 145 U. S. 192, 12 Sup. Ct. 806, 36 L. Ed. 672. It appears in that case the matter objected to was taxation on transportation receipts on goods hauled between points within the state, but passing for a short distance outside the state. This case was commented on, and limited in its effect, by the United States Supreme Court in Hanley v. Kansas City Southern Ry. Co., 187 U. S. 617, 621, 23 Sup. Ct. 214, 47 L. Ed. 333. It was there pointed out that the Lehigh Valley R. R. Case, 145 U. S. 192, 12 Sup. Ct. 806, 36 L. Ed. 672, was merely one of a local tax on property within the state, based on receipts from transportation wholly within the state, and without including receipts on property which passed outside its borders, in the course of carriage between intrastate points. The rule laid down in the Hanley Case has been followed in later cases. West Virginia Rail Co. v. Baltimore & Ohio R. R. Co., 26 Interst. Com. Com'n R. 622; United States v. Del., Lack. & Western R. R. Co. (C. C.) 152 Fed. 269. In the latter case it was held the word "wholly," as used in the provision of the Interstate Commerce Act, which declares it shall not apply to "transportation of property or to the receiving, storage, delivery, or hauling of property wholly within one state," includes within the act shipments which pass outside the state in the course of their journey between points within. Since the subject-matter in the present case is one on which Congress has legislated and the goods in transportation come within the Interstate Commerce Acts by virtue of their passage outside the state, the state courts have no jurisdiction for the recovery of damages as to such part of the goods which were carried through New Jersey. It follows that the judgment of the court below must be reversed, and judgment entered for plaintiff for an increased amount. The amount of the judgment will be computed by taking the difference between the sum of $93,111.88, which sum is made up as per computation based upon a stipulation entered into between the parties as to the tonnage and rebates allowed thereon, and the sum of $10,225.75 being the amount of rebates on tonnage which passed outside the state of Pennsylvania in the course of shipment, to wit, $82,886.13, which, multiplied by three, makes $248,658.39, the amount of the judgment. Judgment reversed, and judgment for |