*386ON MOTION FOR REHEARING.
The appellee strongly insists that the principle announced in the Mugg & Dryden case is not applicable here. His contention is that the instant case as made is analogous to a suit for damages for failure or refusal of the agent of the initial carrier to transport a shipment over the least expensive route, there being two routes available to the point of destination. By a proper construction of the pleading and the evidence in this case, the suit, we think, is simply to recover the difference between the rate quoted by the agent of the initial carrier and the lawful rate in force collected at the point of destination, as damages, as alleged in the petition “for the negligent failure of the defendant Texas & Pacific Railway Company to give plaintiff correct information in regard to said rate, as it was its duty to do.” The petition specially lays the damages at the difference between $54 per car and $89 per car, which amounts to $490. $54 per car was the rate quoted by the agent to appellee, and $89 per car was the lawful rate collected at point of destination. Neither the pleading nor the evidence shows any disregard of the shipper’s instructions in the matter of routing, or any refusal or failure by the agent of the railway company to transport the shipment by the route carrying the lowest rate. It is undisputed that the appellee himself chose and directed the route, and the shipment went according to the route so chosen. We do not feel warranted in interpreting the pleading and evidence as seeking a recovery on any other ground than first above stated. If the suit is by the shipper to recover in the form of damages, as we think it is, a portion of the lawful freight charges paid by him at destination, on the ground of a mistake by the carrier in responding to his inquiry as to the lawful rate then in force, then we think as before, that the ruling in the Mugg & Dryden case, supra, decides the question here. It is not the question here of whether any kind of damages at all could be recovered in the proper suit, for negligence of the agent of the railway company inducing a shipper to select a more expensive route, but the simple question of whether such freight charges are allowable as an element of damages where the lawful rate is collected at destination notwithstanding an erroneous quotation of another and lower rate by the agent of the initial carrier in response to an inquiry of the shipper. A Contract of a carrier to ship at a lower rate than the lawful rate is not valid, and, whether entered into by intention or negligence of the agent of the initial carrier, affords no legal ground of action for the recovery by the shipper of any portion of the lawful charges as his damages. We therefore overrule the motion.
We think the motion of the appellant the Texas & Pacific Railway Company should be granted; and instead of remanding the case as to the item of $490, judgment should be here rendered for said appellant; and the judgment of the trial court is so modified. The motion as to the other appellant is overruled.
Affirmed in part and in part modified and rendered.
Writ of error refused.