(concurring). The action is by the consignee of certain onions against the railroad company carrier for damages for refusal to deliver. The *586answer is a denial, and a counterclaim for the balance due for freight. The following facts appear to be fairly established: Plaintiff purchased the onions in California and caused them to be shipped to his order over certain connecting lines, including the Brie railroad, to New York. The Erie not having a down town track connection in New York city turned them over to defendant. The goods arrived over the latter read August thirty-first, and plaintiff was duly notified. Plaintiff demanded the goods and after some controversy as to proper freight charges tendered the freight charges based on a rate of one dollar and five cents, plus seven cents for defendant’s special charges.- Defendant refused to deliver, claiming the freight was one dollar and twenty-five cents, plus its seven cents. The proper rate was the one tendered by plaintiff. Def endant ascertained this later and so notified plaintiff and that it would accept the lower rate. Thereafter defendant sold the goods as perishable, credited the amount realized on the freight charge as corrected and counterclaims for the balance.
It seems clear that the refusal to deliver the goods on the tender made by plaintiff was wrongful and that a cause of action was then complete. The refusal was not qualified, as in McEntee v. New Jersey Steamboat Co., 45 N. Y. 34, but absolute, unless the larger amount was paid: It is true Mr. Sanders, a witness for the defendant, gave some evidence claimed to indicate that at the time of the refusal he made some statement to the effect that he would consult the Erie. It appears, however, that these freight charges had been on two previous occasions insisted on as a ground for refusal to deliver and objected to by plaintiff, and no effort appears to have been then made by defendant to consult the Erie railroad. Taking the evidence as a whole it seems clear that this idea of taking it up with the *587Erie was an afterthought conceived subsequently to the demand and refusal, and after defendant realized that plaintiff was preparing to litigate the question. A cause of action being complete at the time of the demand and refusal, the subsequent offer could at most be received in mitigation of damages and as such could be effective only if the plaintiff had the usual reasonable opportunity to pay the corrected charge and re= ceive the goods before the sale, assuming the latter to have been lawful. If there was not such reasonable time between the receipt by plaintiff of the notice of the correction in the charges and a lawful sale of the goods, the evidence in mitigation of damages manifestly fails. It is fairly clear that the tender and the demand were made on September third; that on the same day defendant was notified by the Erie railroad of the mistake in the charge and “ the corrected notice ” sent by defendant is dated September third, and was de= livered on the same day at plaintiff’s place of business about three forty-five p. m. Defendant claims it also notified plaintiff of the correction by telephone on September third. The sale was made on a Saturday, September fifth. The notices of the corrected charge have stamped on them the statement that the free storage period expires within three days ‘ ‘ legal holidays and Sundays and day of arrival not included,” and defendant’s witness testified it was customary not to sell as perishable before three days. It is very clear that, taking this as a basis for determining the reasonable time within which to pay and take the goods, such had not expired at the time of sale.
Defendant urges, and the court below held, that its refusal to deliver the goods at the time of the tender was not wrongful because it in good faith believed one dollar and twenty-five cents to be the correct rate, relying therefor on the representations made to it by *588the Brie railroad at the time it received the goods, that being the amount assessed against them on the way bill as the charges of the preceding carriers. The bill of lading issued in California did not specify the rate to be charged, and it is very clear by its own admission that the Brie had no right to collect more than one dollar and five cents and it could not give to defendant a lien greater than it had. If defendant paid, or advanced, to the Brie on its representations more than the proper amount, its remedy is against the Brie. -The shipper is not responsible for the Erie’s representations, or for mistakes as between the intermediate carriers and is not bound to pay excessive charges made against its goods and sue the carrier for the recovery thereof. Any such rule would compel the shipper to pay the overcharges, nó matter how great or burdensome, under penalty, if he refused, or was unable so to do, of losing his property.'
The cases cited by the learned court below are not in point. In Berry Coal & Coke Co. v. Chicago, Peoria & St. Louis R. Co., 116 Mo. App. 214, the court specifically points out that the shipment was not under a through bill of lading as here. There are also other material distinctions between that case and the one at bar. In Glover v. Cape Girardeau & Southern Railway Co., 95 Mo. App. 369, no specified route was fixed by the bill of lading. In such case the court held that the initial carrier was the agent of the owner. Here the route was specified in the bill of lading. The fact that interstate traffic rates are regulated by the interstate commerce commission has no bearing on this case. No question arising under the provisions of the Interstate Commerce Act is here involved. The fact that the regulation of interstate traffic has been assumed by congress does not relieve a carrier from liability for refusal to deliver on payment of the *589proper legal rate. What that is is a question of fact to be determined as any other question of fact. Nor is this such an action as can only under the provisions of the Interstate Commerce Act be brought in the federal court, or before the interstate commerce commission. Such rule of exclusive jurisdiction relates only to actions for damages for which the carrier is liable under said act, or the damages are traceable to a violation of the provisions thereof. Loomis v. Lehigh Valley R. R. Co., 208 N. Y. 312. Nor properly speaking is any question as to a proper lawful rate here involved. 'That the correct rate was one dollar and five cents was conceded by the corrected notice.
That defendant sold the goods without notice to or the consent of plaintiff is conceded. It seeks to justify the sale on the ground that the goods were “ perishable.” The general right of a carrier to sell perishable goods rests on the implied authority from the owner to take such action as the nature of the case requires. The rule is stated in Hutchinson on Carriers as follows:
“ Sec. 790. In order to justify the act of the carrier in making a sale of goods, and to establish his title to them, the purchaser must show that there was a necessity for the sale, arising from the perishable nature of the property, which made its preservation for the owner impracticable, or that, from that or some other cause, it was neither possible to proceed with its transportation nor to store it; that the carrier has acted in good faith and with sound discretion; and that it was impossible to communicate with the owner and to receive instructions from him as to the course to be pursued, without occasioning a delay which the circumstances and condition of the property would not admit. * * *
*590“ Sec. 791. If the carrier * * * sell the goods when the necessity for so doing does not exist, he will be liable in an action for their conversion and nothing but the existence of circumstances of actual necessity will afford an excuse for the sale.”
See also Butter v. Murray, 30 N. Y. 88. Under the statute of this state, section 68, Railroad Law, notice to the shipper is not always necessary, but proof of the perishable quality of the goods is indispensable.
While there was some difference in the evidence as to how far onions in September can be" stored, it is quite evident defendant failed to prove a necessity to sell them so promptly, or that they would have deteriorated by being kept for the customary three-day period or until the usual rejection in writing by the consignee had been obtained. If the sale was not warranted, defendant thereby converted plaintiff’s property and is liable therefor, irrespective of any other .question.
Judgment reversed, and new trial ordered, with costs to appellant to abide event.