§ 1362. Indefinite considerations considered dangerous. It may be conceded that it does not make any difference in what way the freight rate is paid, so that it appears plainly that the full rate is paid. But if some indefinite consideration on which no estimate can accurately be made to ascertain the amount of the charge is alleged, it will be dangerous to permit that to pass. Thus in the important case of Goodridge v. Union Pacific Railway Company,1 the complainant demanded a refund of overcharges by reason of discrimination against him by giving a lower rate to the Marshall Coal Mining Company. The defendant railroad as part of its defense brought out that it was formerly liable to the Marshall Company to a suit for damages for an alleged trespass and to settle this suit it entered into this contract for giving this company these lower rates. But Judge Hallet said that to allow this would endanger the law forbidding discrimination. "This law cannot be controlled or defeated by any agreement between the railroad company and the favored shipper. It is true that when the consideration paid for reduced rates by the favored shipper is obviously equal to the discount allowed him, the law does not apply. Whenever that fact appears, since it matters not in what form the shipper pays the usual rates, the alleged discrimination disappears, and the contract is no longer obnoxious to the law. If, to illustrate, the damages due from the Denver & Western Company had been liquidated,2 and the various considerations inuring to the benefit of the carrier have been permitted to be shown. Thus that other business is thereby secured was once thought enough. See Johnson v. Pensacola & P. R. R. Co., 16 Fla. 623, 26 Am. Rep. 731 (1878). 173 Fed. 182 (1889), affirmed in 149 U. S. 680, 37 L. ed. 986, 13 Sup. Ct. 970 (1893). See further State v. Note that on Feb. 20, 1911, the Supreme Court of the United States held that advertisements could not be set off against transportation. 2 The distinction made in the principal case above will reconcile two Federal cases of recent instance. agreement was to carry a certain quantity of coal for the amount so fixed, the question would be different. As it stands, the agreement is to give to the Marshall Company a reduced rate for certain considerations which defendant says are sufficient to make up the discount from the schedule rate; and as to that matter, the fact cannot be ascertained from the contract or otherwise. So understood it is clear that the contract affords no protection to defendant for the discrimination in rates to which plaintiffs and other shippers of coal over defendant's road îre subjected." 1363. Reductions for services rendered. 1 Similarly there were formerly no doubts that persons who had rendered valuable services to a railroad company could be given transportation free or at reduced rates. Thus employees of the company itself may be given passes as part of their wages. In one of the earlier cases it will be remembered the services of certain shippers as "eveners" in distributing traffic was held to be a fair consideration for a fixed percentage of reduction in their freight rates.2 But the progress of the law may be shown by the latest cases in which it is held that passes issued for indefinite services are too likely to be in fact discrimination against those who pay the regular rates for their transportation. Thus a pass issued to a physician who contracts to per promise of unliquidated claims against the company for loss of property in transit. United States v. Atchison, T. & S. F. Ry. Co., 163 Fed. 11 (1907). In one it was held that when a cessions were granted in comliquidated sum is owed a shipper by a carrier, the carrier can pay it off at regular rates. Interstate Comm. Comm. v. Cheaspeake & O. R. Co., 128 Fed. 59 (1904). In the other it was held to be no defense in a prosecution of a railroad company for granting concessions to a shipper from its published rates, in violation of the Elkins Act, that such con 1 Dempsey v. New York C. & H. R. R. Co., 146 N. Y. 290, 40 N. E. 867 (1894). R. 2 Rothschild v. Wabash R. R. Co., 92 Mo. 91, 4 S. W. 418 (1887). form certain service for a railroad company is in contemplation of law, a free pass, if the services do not require a major portion of the physician's time.1 So a pass issued to the proprietor of a newspaper in return for publicity of various sorts is within the prohibition of the stringent clauses against discrimination in recent statutes.2 And indeed it would seem to be a necessary holding under these recent statutes directed against discrimination that money value should be the only standard of compensation receivable, otherwise it will be impossible to insure equal rates to all. § 1364. Continuing obligations for past consideration. It was once common to give as consideration in various contracts made by the railroads promises to give free transportation. Thus it was not uncommon in buying land for the railroad to agree to transport free for life the grantors and sometimes their families also. The courts once had no hesitation in supporting such contracts both in favor of the promisee and of the beneficiary. In late years the question has come up whether the passage of legislation against free transportation applies to this situation. Even in the present rage against discrimination it is felt that such transportation for executed consideration is a vested right which should not be destroyed. But the latest case seems to be so radical as to ignore this right. 1 State v. Martyn, 82 Neb. 225, 117 N. W. 719, 23 N. L. R. A. (N.S.) 217 (1908). 2 McNeill v. Durham & C. R. R. Co., 132 N. C. 510, 44 S. E. 34 (1903); State v. Union Pacific Ry. Co. (Neb.), 126 N. W. 859 (1910), accord. 3 Minnesota.-Grimes v. Minneapolis, L. & M. Ry. Co., 37 Minn. 66, 33 N. W. 34 (1887). 3 Pennsylvania.-Erie & P. Ry. Co. v. Douthet, 88 Pa. St. 245, 32 Am. Rep. 45 (1878). United States.-Mottley v. Louisville & N. R. R. Co., 150 Fed. 406 (1907), overruled by the U. S. Supreme Ct. Feb. 20, 1911. Kansas. In re Curry v. Kansas C. & P. R. Co., 58 Kan. 6, 48 Pac. 579 (1897).. 1365. Concessions to those with whom it deals. The dangers inherent in any permission to the common carrier to make different rates to different classes of customers requiring the same service is most apparent in a case like Louisville, Evansville & St. Louis Consolidated Railroad Company v. Wilson.1 In that case it appeared that the railroad made high rates on cross-ties to all except one Dickason, with whom it entered into a contract giving him low rates in return for his agreement to sell it the ties it should wish at a specified price. When this scheme was brought before the court for examination in a suit by a shipper who had suffered by this discrimination, it appeared that while he was paying $24 per car from one point to another, this Dickason was paying only $14 per car for the same transportation. The highest court sustained the instructions given in behalf of the plaintiff: “If the contract was of such a character as to destroy the business of the appellees by reason of the discrimination in favor of Dickason, and thus enable Dickason to acquire a monopoly of the business of purchasing and shipping crossties on appellant's road, the discrimination was unjust, without regard to the consideration upon which it was based." 2 § 1366. Rates adopted to foster its interests. Despite any policy which the carrier may have in mind it must be evident that all patrons of the road have a right to adequate service at fair rates. Every producer has a right to sell his product as he pleases in the best market available, and rates must not be adopted with the idea of compelling the product to be disposed of in a way 1132 Ind. 517, 32 N. E. 311 (1892); American Tie & T. Co., Ltd., v. Kansas City So. Ry. Co., 175 Fed. 28 (1909), accord. 2 See, to the same effect, Cedar Lumber Products Case, 3 Can. Ry. 2 desired by the carrier.1 In one extreme case of this sort the railroad company refused to furnish cars for a coal miner who would not sell his coal to a coal company which was allied with the railroad. In granting a mandamus in that case Mr. Justice Dean said: "It is a refusal to carry his coal because he will not sell it at a low price to the president's coal company. As the court below, in substance, says, it was iniquitous. It, in effect, if kept up, would completely destroy his plant, with the consequent loss of his invested capital; and even if now his wrong is, to some extent, remedied, he has lost months of active business." 1 See cases discussed in last paragraph. 2 Loraine v. Pittsburg, J. E. & E. R. R., 205 Pa. St. 132, 54 Atl. 580, 61 L. R. A. 502 (1903). |