This is an action in which the appellee, Joseph Fischl, who was the plaintiff in the court below, sued the appellant, Charles Dillingham, as receiver of the Houston Texas Central Railway Company, who was defendant in the court below, in the District Court of Washington County, on the 22nd day of February, 1890, to recover the statutory penalty for refusing to deliver a car of flour shipped from St. Louis, Missouri, to Brenham, Texas, directed to appellee by the terms of the bill of lading. The penalty sued for was the sum of $94.88, the amount specified in the bill of lading, for each day the flour was detained.
The appellee was a merchant doing business in Brenham, Texas, and on or about the 16th day of December, 1889, appellee purchased a car of flour, weighing 23,720 pounds, from the Kaufman Milling Company, in St. Louis, Missouri. The contract of purchase was made through one Slater, who was the agent of the Kaufman Milling Company at Brenham, Texas; and on or about the said 16th day of December, 1889, the Kaufman Milling Company, acting for and on behalf of the appellee, Joseph Fischl, delivered said car of flour to the St. Louis, Arkansas Texas Railway, which was then and there a common carrier from the city of St. Louis, Missouri, into the State of Texas, making connection with the Gulf, Colorado Santa Fe Railway and the Houston Texas Central Railway, leading to the city of Brenham, in the State of Texas.
The said St. Louis, Arkansas Texas Railway Company issued, executed, and delivered to appellee's agent, the Kaufman Milling Company, in the city of St. Louis, Missouri, a bill of lading, whereby it acknowledged it had received said car of flour for shipment from St. Louis, Missouri, to Brenham, Texas, and it appeared from said bill of lading that the rate of freight on said flour was 40 cents per 100 pounds, via the Gulf, Colorado Santa Fe Railway, from St. Louis to Brenham, Texas, and that said freight was to be carried via said railway (the Gulf, Colorado Santa Fe); and when said car of flour arrived at its destination, Brenham, Texas, the appellee tendered the appellant the sum of $94.88, which was the amount specified in the bill of lading, which amount was declined, and 53 cents per 100, the established rate, demanded, which was refused by appellee. *Page 549
The defendant answered by a general and special demurrer and general and special answer. The special demurrer was sustained. The special answer alleged, that said car of flour was shipped from St. Louis, Missouri, to Brenham, Texas; that when said car of flour reached and arrived at Corsicana, it was, in the due course of business, turned over to defendant for transportation to Brenham, and that said flour was carried to Brenham within a reasonable time and in good order and condition; that after said car of flour arrived at Brenham, its destination, the same was tendered to appellee, demanding of him the regular schedule rate, which he refused to pay, and left said flour in the possession of appellant.
That appellant, before and at the time of the shipment of said flour, had established schedule rates of freight, as required by the act of Congress, and that the schedule rate on flour from St. Louis, Missouri, to Brenham, Texas, was 53 cents per 100 pounds via the Houston Texas Central Railway.
That the said St. Louis, Arkansas Texas Railway did not run into the city of Brenham, and all goods and merchandise from Brenham via the Houston Texas Central Railway was delivered to appellant at Corsicana, a station on the line of its road.
And the appellant further alleged and charged, that after said flour arrived in the city of Brenham, its destination, and after appellee refused to pay the schedule charges due thereon, that his (appellee's) agent, or some person for him in St. Louis, Missouri, the Kaufman Milling Company, telegraphed said appellee, Joseph Fischl, to pay schedule charges demanded of him by appellant, and that they would protect and hold appellee harmless, all of which appellee refused to do, but said flour remained in the possession of appellant for more than a month, when the appellee paid the schedule charges and took said flour.
The appellee demanded a jury, and said cause was tried and resulted in a verdict and judgment for appellee for $4079.84. A motion for a new trial was made and overruled, and notice of appeal given.
Appellant's first assignment of error is as follows: "The court erred in not permitting the defendant, Dillingham, to establish and prove the fact by the plaintiff and other competent testimony that the said Kaufman Milling Company proposed and would have held the plaintiff, Fischl, harmless, and offered to pay the difference between 40 and 53 cents per 100 pounds on the car of flour."
We are of the opinion that this assignment presents a proposition which can not be sustained, and that the court did not err in excluding the evidence offered by appellant to show that the appellee would not consent that the difference between rate of freight specified in the bill of lading and that demanded by appellant might be paid by the Kaufman Milling Company. If the appellant be liable for the penalty imposed by the statute *Page 550 for demanding more freight than that named in the bill of lading, and refusing to deliver the freight to the consignee until the freight demanded was paid by the consignee, the latter could not be deprived of the right to recover the penalty by the willingness of a third party to pay the difference in the freights. Had this difference been paid by the shipper to the appellant, and appellant had then made a tender to appellee of the goods, upon payment by the latter of the freight charges named in the bill of lading, it may be that from such tender by appellant he would have been relieved from any further liability under the statute. But it certainly was not incumbent upon appellee to aid and assist the appellant in relieving himself from any liability he had incurred to appellee, or would incur, by continuing to hold the goods after their delivery had been demanded.
The appellant's eleventh assignment is as follows: "The court erred in following the State statute when it conflicted with the act of Congress, and instructed the jury under the terms of the State statute to find for the plaintiff." This assignment presents the controlling question of the case, and upon its solution depends the affirmance or reversal of the judgment of the lower court. The evidence shows, we think, beyond cavil, that the carload of flour, the alleged illegal detention of which by appellant is the basis of appellee's suit, was purchased by appellee's agent in St. Louis, Missouri, and by him delivered to the agent of the St. Louis, Arkansas Texas Railway, a common carrier from the State of Missouri into the State of Texas, and that said railway had connection with two railways in the State of Texas, to-wit, the defendant railway and the Gulf, Colorado Santa Fe Railway, and that with each of the said railways the said St. Louis, Arkansas Texas Railway had, at and previous to the delivery of said flour, an agreed and established rate of freight between the city of St. Louis, in Missouri, and the city of Brenham, in the State of Texas; that the rate of freight upon flour via the defendant railway was 53 cents per 100 pounds from St. Louis to Brenham, and that the rate via the Gulf, Colorado Santa Fe Railway was 40 cents per 100 pounds, and that the St. Louis, Arkansas Texas Railway, upon the receipt of the flour from the appellee's agent, promised and contracted, as evidenced by the bill of lading delivered to said agent, to carry said flour to Brenham, Texas, via the Gulf, Colorado Santa Fe road, and to charge therefor 40 cents per 100 pounds, and that said flour was in fact carried by said St. Louis, Arkansas Texas Railway to Corsicana, Texas, and there delivered to its other connecting line in the State of Texas, the defendant company; and that defendant did carry said flour, within a reasonable time and in good order and condition, to the city of Brenham, and duly notified the consignee, the appellee, that the flour had reached its destination, and tendered same to appellee upon payment by him of the freight charges at the rate of 53 cents per 100 pounds, which payment appellee *Page 551 declined to make, and tendered to defendant's agent at Brenham the amount of the freight money agreed upon by his agent with the said St. Louis, Arkansas Texas Railway, to-wit, the sum of $94.88, that being the amount of freight due, calculated at the rate of 40 cents per 100 pounds; and with said tender appellee exhibited his bill of lading and demanded the delivery to him of his goods, which demand was by the defendant company's agent refused, and the said goods were held by defendant until the 8th day of February, 1890, when appellee paid the sum of money demanded by defendant, to-wit, the sum of $125.72, and received said flour from defendant. And the evidence further shows, that the said cargo of flour was, when received by defendant at Corsicana, marked and way-billed for Brenham via defendant's railway, and not marked and way-billed via the Gulf, Colorado Santa Fe Railway; and there is no evidence that defendant knew of the contract for shipment via the Gulf, Colorado Santa Fe Railway. These facts show that the flour was interstate commerce, and that the defendant company and its connecting line, the said St. Louis, Arkansas Texas Railway Company, were common carriers engaged in carrying interstate freight, and were answerable to the laws of Congress regulating interstate traffic. Norfolk v. Railway, 136 U.S. 114, and act of Congress entitled "An act to regulate commerce," approved in 1887, and its amendments.
By the act of Congress above recited, such carriers who agree upon rates of freight over their lines are required to publish the rates, and to deliver copies of same to the Interstate Railway Commission; and after said rates are so established and continuing in force, any such carrier, or the agent or servant of such carrier, who receives or demands either less or more freight than that previously agreed on and established, is guilty of a misdemeanor, and upon conviction is subject to fine and imprisonment.
By the statute of Texas (Act of May 6, 1882), any railroad company, its officers, agents, or employes, that shall refuse to deliver to the owner, agent, or consignee any freight, goods, wares, and merchandise, upon the payment or tender of payment of the freight charges shown by the bill of lading, shall be liable in damages to the owner of said freight, goods, and merchandise to an amount equal to the amount of the freight charges for every day said goods, wares, and merchandise may be held after payment or tender of payment of the charges due, as shown by the bill of lading. This act has been declared by our Supreme Court to be an exercise of the police power of the State, and that it is not in conflict with the Federal Constitution. Railway v. Dwyer, 75 Tex. 578-583.
Such being the law, the penalty imposed by the statute might be recovered from a common carrier engaged in interstate commerce. Had the goods of appellee been shipped by the contracting railway company, as it promised and agreed to do, via the Gulf, Colorado Santa Fe Railway, *Page 552 at the rate of 40 cents per 100 pounds, said rate having been previously agreed upon and established by said companies, and the said Gulf, Colorado Santa Fe Company had refused to deliver his goods to appellee upon payment or tender of payment by him to said company of the freight charges as specified in the bill of lading, we have no doubt the appellee might recover the penalty imposed by the statute from said last named company.
But the question for our decision is not whether the law be in conflict with the Federal Constitution, and therefore void, but the question is, can the law be enforced when it demands of a common carrier employed in transporting interstate commerce the doing of that which he is forbidden to do by the laws of Congress, under the penalty of fine and imprisonment? To state this question, it seems to us, is to answer in the negative. A law of Congress, itself constitutional, is paramount to any State law, when the provisions of the latter are antagonistic to those of the former. We therefore conclude that it is immaterial whether the defendant company knew or did not know at the time it received the flour consigned to appellee that the St. Louis, Arkansas Texas Railway had contracted with appellee to transport his merchandise at the rate of 40 cents per 100 pounds. The defendant was required by the statute of this State to receive the cars of roads connecting with it, and under its contract with said connecting railway the defendant was under obligation to carry freight tendered by said line at an agreed rate, and that rate neither the defendant nor the company delivering the goods to defendant could change except by violating the Federal statute. Under such circumstances, we do not think the defendant company could be said to adopt and ratify the bill of lading, if it received the goods with knowledge that the railway company tendering them had contracted with appellee to transport said goods at 40 cents per 100 pounds. And unless the evidence shows that the carrier refusing to deliver goods to the consignee upon payment or tender of payment of the freight specified in the bill of lading, either executed the bill of lading or ratified it, no recovery can be had under the statute. Dwyer v. Railway, 75 Tex. 572. We think the trial court erred in the application of the law to the facts of the case, and that the law was substantially presented in instructions one and two requested by appellant's counsel.
In answer to the contention of appellee, that the defendant should not be permitted to challenge the binding force upon defendant of the bill of lading, except under a plea of non est factum, it is sufficient to say that plaintiff's petition does not charge that the defendant executed the bill of lading, or that defendant authorized any one to execute same for defendant, nor does it charge that there was a partnership between defendant and the railway company which executed the bill of lading. In the case cited by appellee's counsel (Railway v. Tisdale, 74 Tex. 8 [74 Tex. 8]) the *Page 553 petition charged the existence of a partnership between the defendant company and the connecting railway companies.
For the error above indicated, our judgment is that the judgment of the lower court be reversed and that the cause be remanded for another trial in accordance with the law as enunciated in this opinion.
Reversed and remanded.
Chief Justice GARRETT did not sit in this case.