Two suits between the same parties growing out of one transaction come here together. One is to recover a penalty for the railway’s refusal to deliver goods to a consignee on tender of the charges shown to be due by the bill of lading under* which the goods were shipped ; the other is an action of replevin brought by the consignee for the possession of the goods. We leave the details of the facts to the reporter.
I. As to the fenalty :
The penalty denounced by statute against a railway for failure to deliver freight upon tender of the charges, shown to be due by the bill of lading cannot be recovered against the railway where the bill of lading does not represent the amount of charges that are legally demand-able by the carrier to whom the tender is made. A plain illustration is where a through bill of lading is issued by a carrier who fixes a rate not authorized by the connecting carrier. Gulf, etc., Ry. v. Dwyer, 19 S. W. Rep. 470. In such a case the unauthorized contract does not deprive the last carrier of the right to hold the freight until his legal charges are paid. Crossan v. Ry. 149 Mass. 196.
If the carrier who issues the bill of lading is authorized to stipulate that the last carrier will transport the freight over his line at a given rate, and the first or a succeeding -carrier mis-routes the freight, so that when it reaches the last carrier it is burdened with charges for carriage over another line which the owner of the goods had not agreed to pay, that does not prevent the last carrier from maintaining possession of the goods to protect his lien for all lawful charges against them, for it. is no fault of his that the additional charges have been incurred. Crossan v. Ry. 149 Mass. 199 ; Vaughan v. Ry. 13 R. I. 578.
If the first carrier guaranties a through, rate at a given sum, when the only authority he has from the last carrier is that the latter will carry the goods over his line for a given proportion of the rate fixed by their traffic arrangements, the guaranty is not binding upon the last carrier because he has not authorized it. Such an arrangement does not make the connecting- lines partners, nor constitute one the agent of the other for any purpose, except to bind it to carry over its line at the rate agreed upon between them. Hot Springs Railroad v. Trippie, 42 Ark, 465.
The carrier issuing the bill of lading cannot, therefore, throw upon the last carrier the burden of bearing an additional charge incurred through the negligence of a preceding carrier in forwarding or carrying the goods to a wrong place when the last carrier is not at fault. Price v. Ry. 12 Col. 402; Hutchinson on Carriers, sec. 491a.
The undisputed facts place thi§ suit for the statutory penalty in one of two attitudes, viz.: (1) If the goods were originally shipped to go under the bill of lading by way of Brinkley on the appellants’ road, there was no authority in the shipping carrier to issue the bill of lading so as to bind the appellants or the R. R. & M. Ry. to carry at the rate specified in the bill of lading ; or (2) if the goods were shipped at an authorized rate to go over the appellants’ line by way of Jonesboro, they were mis-routed by a preceding carrier for whose act the appellants were not responsible, and came to them bound by the charge of the R. R. & M. Ry.- for the carriage over its line. Under neither state of 'facts could the appellants, who were forced to assume or pay the charges existing against the goods when they came to their hands, be put in default by tendering the less amount called' for by the bill of lading; and the statute does not intend to punish a railway for refusing to do what it is not legally bound to do. The penalty was not incurred, and the judgment is wrong.
II. As to the action of replevin:
The company refused to surrender the goods unless the charges due the other companies, and $29 for carriage over its own line, were first paid. The latter amount is much in excess of what it would have been entitled to for the haul from Jonesboro to Clarendon under its arrangement with the company which'issued the through bill of lading. The bill of lading does not expressly direct that the flour shall be delivered to the appellants at Jonesboro, but the finding for the plaintiffs fixes the fact that such was the contract between the parties to it. If, therefore, the car had been delivered to the appellants at Jonesboro, the contract would have bound it to carry the freight over its line at the contract price to Clarendon, its destination. Brinkley is on the same line, and is situated between Jonesboro and Clarendon. The freight was a car-load lot which went through to its destination without break of bulk. The only difference, so far as the evidence shows, that delivery at Brinkley instead of at Jonesboro made to the appellants was that it saved to the appellants about five-sixths of the haul it would have made in case of delivery at Jonesboro. The delivery at Brinkley redounded, therefore, to the appellants’ advantage, and if they receive what they contracted to carry the g'oods the full route for, they will have no cause to complain. As the appellees wish to stand by their contract, they cannot complain at paying the .appellants the price due them under the contract
But, as we have seen above, the appellants are entitled to the charges paid or assumed to the L. R. & M. Ry. for carriage over its line. That sum the appellees can recover of the company which guarantied the through rate (L. R. & F. S. Ry. v. Daniels, 49 Ark. 352), or of the Kansas City Company, if that company was at fault in carrying the goods to Memphis and re-shipping over the L. R. & M. Ry.
The Kansas City Company was- the agent of the appellees to forward the goods, and they must bear the result of their agent’s negligence instead of casting it-upon the appellants by forcing them to assume the charges paid to the L. R. & M. Ry., as they attempted to do.
The court should have allowed the appellants the charges due the latter company ($8.06) in addition to thp amount called for by the bill of lading. The judgment in replevin will be modified here to that extent. The judgment for the penalty will be reversed, and the complaint dismissed.
It is so ordered.