consignor or shipper is, by operation of the rule, regarded as a trustee of an express trust, like a factor or other mercantile agent who contracts in his own name on behalf of his principal." Here the defendant contracted solely with the plaintiff. In the contract the defendant, with full knowledge of the facts, recognized the plaintiff as sole owner of the property. The freight had been fully paid in behalf of the plaintiff. To him the defendant, in consideration of such payment, expressly agreed to deliver the property at the place of consignment. This express agreement was broken by the refusal to so deliver except upon condition of a further payment of an unauthorized exaction. This unauthorized exaction was complied with when the delivery was made. Having broken the contract, and received the overcharge in consequence of the breach, the defendant seeks to escape liability for the breach on the ground that the only party with whom it contracted was not in fact the owner of the property, and did not personally furnish and pay the overcharge exacted as a condition of the delivery. To hold such a defence available would, in effect, abrogate an express written contract. One exception to the statutory rule that "every action must be prosecuted in the name of the real party in interest" (Sec. 2605), is that "a trustee of an express trust may sue without joining with him the person for whose benefit the action is prosecuted." Sec. 2607. "A trustee of an express trust, within the meaning of this section," must "be construed to include a person with whom, or in whose name, a contract is made for the benefit of another." Id. By amendment these provisions have been made applicable to actions brought in justice court, as Subdiv. 27, Sec. 2, Chap. 194, Laws 1879. If the consignor or shipper could properly be "regarded as a trustee of an express trust" under this statute, as held in Hooper v. Railway Co., supra, then certainly the person described in the contract as consignor, consignee and sole owner, and for whom the freight has been paid, must also be regarded as a trustee of an express trust under the statute. Allen v. Kennedy, 49 Wis. 549. The judgment of the circuit court is affirmed.

this was.

*

* *

General References.--As to the construction of statutes forbidding excessive freight charges and the right to recover back the excess paid, see Lotspeich et al. v. Central R. & B. Co. of Ga., and note infra; and Peters, Ricker & Co. v. Marietta & Cincinnati R. Co., and note infra.

LOTSPEICH et al.

v.

CENTRAL RAILROAD & BANKING COMPANY OF GEORGIA.

(73 Alabama Reports, 306.)

The rate on freight carried over the whole line of a railroad company, which furnishes the basis for the additional fifty per cent. allowed by the act of the General Assembly of Alabama, approved April 19th, 1873, for the transportation of "local freight," is the rate charged on freight taken on at one terminus, and discharged at the other; and not the rate for freight brought from or carried to a point beyond either terminus of the road.

While a railroad company may give a bill of lading to deliver freight at a point beyond its line, which binds the company for safe delivery at the agreed point of destination, this is simply a matter of agreement between the shipper and the company, in the absence of which the company is not liable for a loss occurring after the freight has passed beyond its line; and the company cannot be compelled to give such a bill of lading.

Where, in an action against a railroad company by a shipper, to recover the excess of charges on cotton shipped by him over and above what was reasonable, the only testimony bearing on the question of the reasonableness of the charges paid by him was, that the rates of freight on compressed cotton shipped from Montgomery or Selma, were about fifty per cent. in excess of the rates paid by him on uncompressed cotton shipped from Opelika, a point sixty-six miles less in distance than Montgomery, and 116 miles less in distance than Selma, from the terminus of the road to which the cotton was shipped, it being common knowledge that compressing cotton bales reduces their bulk about one-half, the testimony was wholly insufficient to furnish a basis for determining the reasonableness of the charges; and hence the primary court did not err in refusing to submit that question to the jury.

APPEAL from Lee Circuit Court.

This action was brought by Lotspeich & Ponder against the Central Railroad & Banking Company of Georgia, and the Georgia Railroad & Banking Company, corporations owning and operating, as is averred, a railroad from Selma, Alabama, to the State line between Alabama and Georgia, and was commenced on 9th April, 1878. The complaint contains several counts, one being for money had and received by the defendants to the plaintiffs' use, and the other seeking to recover the penalty allowed by the act of the General Assembly approved April 19th, 1873, for excessive charges on cotton shipped by the plaintiffs on the defendants' railroad. The facts disclosed by the record, so far as is necessary to an understanding of the points decided, are sufficiently stated in the opinion. The court charged the jury, at the written request of the defendants, that, if they believed the evidence, they must find for them, and the plaintiffs excepted. This charge is here assigned as error.

to

Wm. H. Barnes, for appellants.
Geo. P. Harrison, Jr., contra.

STONE, J.-In Mobile & Montgomery Railroad Co. v. Steiner & McGehee, construing the act of April 19th, 1873, we said: “The rate on freight carried over the whole line of its road,' which furnishes the basis for the additional fifty per cent. allowed by that act for the transportation of local freight,' is the rate charged on freight taken on at one terminus, and discharged at the other, and not the rate for freight brought from or carried to a point beyond the termini of the road." 61 Ala. 559. We are asked to review and reverse that ruling. Nothing has occurred to change our opinion then expressed, while the facts of this case tend to confirm the conclusions we then announced.

It is further contended for appellants that the charges made and collected by the railroad in this case were unreasonable, and therefore they ought to recover back the excess, as so much money had and received. And it is claimed that this question should have been submitted to the jury, for them to determine whether or not the charges were reasonable.

The testimony bearing on this question is clear and without conflict. There was, in fact, no question of local freight in the case. All the cotton shipped, excessive transportation charges on which are complained of, was consigned to points hundreds of miles beyond the terminus of the railroad, whose bill of lading was taken. Bills of lading by railroad companies are frequently given, binding the company to deliver at a point beyond their line. Such bills bind the company for safe delivery at the agreed point of destination. M. & G. Railroad Co. v. Copeland, 63 Ala. 219. This, however, is a question of contract; and in the absence of a special contract to deliver, the receiving railroad is not liable for a loss or injury occurring after the freight has passed from its line. Nor can a railroad corporation be compelled to give a bill of lading for delivery beyond its line. It is simply a matter of agreement between the shipper and the receiving road. The only testimony bearing on the question of reasonableness in the charges is as follows: From the various points to which cotton, shipped over defendants' road and its connections, was consigned, the distance to Montgomery, Alabama, was sixty-six miles greater than the distance to Opelika, from which last point plaintiffs did their shipping. The distance to Selma was fifty miles greater than that to Montgomery. The shipping rates from Opelika were about fifty per cent. in excess of those charged from Montgomery and Selma. But cotton shipped from the last two points was always compressed, while that shipped from Opelika was not compressed. It is common knowledge that compressing cotton bales reduces their bulk probably one-half. What would have been the rate of

non-compressed bales from Selma or Montgomery is nowhere shown. No testimony was produced at all calculated to furnish a basis for determining the reasonableness of the charges; and hence nothing was before the jury to justify the court in submitting that question to them.

We find no error in the record, and the judgment of the circuit court must be affirmed.

Construction of Statutes Prohibiting Overcharges in Freight.-In almost all of the States laws have been passed prohibiting railroad companies from charging excessive rates of freight and fare. As to the construction of such acts which generally provide for a penalty in case of their violation, and permit a recovery of the excess paid, see the following authorities: Fuller v. Chicago & N. W. R. Co., 31 Iowa 187; Streeter v. Chicago, M. & St. P. R. Co., 40 Wisc. 294; Fisher v. New York Central & H. R. R. Co., 46 N. Y. 644; Smith v. Chicago & N. W. R. Co., 43 Wisc. 686; s. c. 1 Am. & Eng. R. R. Cas. 303; Moore v. Illinois Central R. Co., 68 Ill. 385; Knight v. Southern Pacific R. Co., 41 Tex. 406; Graham v. M. C. & St. P. R. Co., 53 Wisc. 473; s. c. 3 Am. & Eng. R. R. Cas. 289; Rogan v. Aiken, 9 Am. & Eng. R. R. Cas. 201; Harriman v. Burlington, etc., R. Co., 9 Am. & Eng. R. R. Cas. 339; Heiserman v. Burlington, C. R. & N. R. Co., 16 Am. & Eng. R. R. Cas. 46; Steever v. Illinois Central R. Co., 16 Am. & Eng. R. R. Cas. 53.

Statutes Prohibiting Overcharges in Freight under Penalty are Constitutional. Such statutes are constitutional, and are not in derogation of charters previously granted to specific companies. Georgia R. & B. Co. v. Smith, 9 Am. & Eng. R. R. Cas. 385; Ruggles v. People, 11 Am. & Eng. R. R. Cas. 49; Illinois Central R. R. Co. v. People, 11 Am. & Eng. R. R. Cas. 55; Louisville & N. R. Co. v. Railroad Commissioners of Tenn., 16 Am. & Eng. R. R. Cas. 1.

Recovery of Excess in Charge for Freight.-As to the right to recover back the amount paid in excess of the legal freight, see Watermau v. Chicago, M. & St. P. R. Co., supra; and Peters, Ricker & Co. v. Marietta & Cinn. R. Co., and note, infra.

PETERS, RICKER & Co.

V.

MARIETTA & CINCINNATI R. R. Co

(Advance Case, Ohio, Oct. 21, 1884.)

Whether the rate of freight fare fixed by a railroad company, under See. 12 of the Ohio act of February 11, 1848 (S & C. 271), for distances less than thirty miles, be reasonable or not, is a question of fact to be determined by the circumstances of each case.

A shipper has a right to have his goods transported at legal rates over the usual line of a common carrier of such goods; and if to procure the services of such carrier, the shipper is compelled to pay illegal rates established by the carrier, the payment is not such a voluntary payment as will preclude recovering back the illegal charge; nor will it preclude such recovery if the payments, by arrangement of parties, are made at the end of each month.

ERROR to the District Court of Scioto county.

This case is one of twelve cases, each of which has similar facts and questions of law.

The plaintiffs owned iron blast furnaces for the manufacture of pig iron, and the furnaces were located along the line of the Scioto & Hocking Valley Railroad, between Portsmouth and Hamden. All but five were built after the construction of the road, and after that time all the furnace companies exclusively relied upon it for transportation.

This part of the S. & H. V. R. R. was purchased about Dec. 1, 1863, by the defendant and possession taken. By the act of Feb. 11, 1848 (S. & C. 271), the S. & H. V. R. R. Co. was limited in its rate of charges for the transportation of freight to five cents per ton per mile, as a maximum charge for distances of thirty miles or more, and for distances of less than thirty miles, to "reasonable rates." This limitation was not on the defendant as to its original road, but it might charge for the transportation of property "such rates of toll as the corporation may determine."

After this purchase the defendant claimed the right to charge the same rates over the purchased road that were charged over its own road, and advanced the rates under dates of January 26, 1864, March 7, 1864, March 28, 1864, Aug. 1, 1864, Sept. 12, 1864, Dec. 12, 1864, and March 16, 1865. This caused objection and remonstrance, and in 1867 the suits were commenced.

The petition further avers that plaintiffs were entitled to have their freight carried at rates limited to be charged by the S. & H. V. R. R. Co., but that the defendant has disregarded plaintiffs' rights and has taken advantage of plaintiffs' necessities, and has required unlawful and unjust rates, which plaintiffs have been compelled to pay by the necessities of their business, and that plaintiffs remonstrated against the unjust exactions and protested against the payment of the same, and that the defendant, although requested so to do, has neglected and refused to account with the plaintiffs as to the payments in excess of legal rates, and that defendant has so received to and for the use of the plaintiffs the several sums of money set forth in the exhibit, and prays judgment.

The answer has three defences: The first denies that the defendant is restricted in charging freight and fare to the charter of the S. & H. V. R. R. Co., and claims, as purchaser of that road, to be authorized to charge any "fair and reasonable rates;" the second alleges that all sums paid were so paid voluntarily, after the services for which the same were demanded had been fully rendered, and when defendant's demand for the same could not have been enforced without giving plaintiffs a day in court, with full knowledge, or the means of knowledge, of the change in the ownership of said railroad, and of the charges demanded by the defendant for the transportation of the property upon its said purchased