i. i,ien 0f freight,
The court below found the facts in the case as follows : That the plaintiff purchased a car load of stoves at Hvansville, Indiana, for shipment to Nashville, Arkansas ; that they were delivered at Hvansville to the Ohio Valley Railway Company which issued a through bill of lading at a guarantied rate of 78 cents per hundred pounds ; that to complete the carriage 'it was necessary that the freight be transported ever several connecting lines before it reached Hope, Arkansas, where it was received by the defendant for carriage to the place of consignment; that the defendant had no contract or agreement with the initial road authorizing it to make a rate for defendant lower than its regular local rate, and had never agreed upon or fixed with it any joint through rate from Hvansville to Nashville ; that defendant received, and carried the goods from a connecting carrier without knowledge of the rate guarantied ; that, upon the receipt of the freight, it paid the charges that had accumulated to prior carriers, and that the amount so paid, added to the regular rate of the •defendant, exceeded the rate guarantied in the bill of lading.
Upon this finding, the court held that the plaintiff was not entitled to demand the stoves except upon payment or tender of the sum of the charges paid by the defendant and the amount due it for carriage according to its regular rate of charges ; as no such payment or tender had been made, its finding was for the defendant.
It was not shown below, nor is it insisted here, that the charges paid by the defendant were in excess'of the regular rates of the several carriers to whom they were paid, or that the defendant made the payment with notice that the charges were in excess of what was legally due.
We are of the opinion that the court could have-made no different finding upon the evidence ; and that, upon the case found, the defendant was entitled to hold the stoves until the sum of the freight due it according to its regular rates and the charges advanced by it to the former carriers were paid. The authorities to sustain this conclusion are too numerous and too well established to require a review at our hands. Hutch. Car. 478«'and cases cited ; Railway Co. v. Lear, 54 Ark. 399 ; Wolf v. Hough, 22 Kas. 659 ; Vaughan v. Providence, etc., Ry. Co. 13 R. I. 578.
2. Duty of railway to surrender freight.
But it is insisted that, by the terms of the act of the 27th of February, 1885, it is made the duty of all carriers to surrender freight upon payment of the charges specified in the bill of lading, without reference to the relation which the carrier, to whom the payment is tendered, sustains to the bill of lading, and that for this reason the defendant was bound to deliver the stoves. The position is not tenable. In the case of Fordyce v. Johnson, ante, p. 430, in an opinion by the Chief Justice, it is held that the act relied upon applies only to carriers that'are bound by the bill of lading, either as having made, authorized or adopted it. As the defendant in this case neither made nor authorized the making of the bill of lading, and was not cognizant of its provisions until after it advanced the prior charges and earned its freight by completing the carriage, we think the bill of lading was not binding upon it, and that the act was inapplicable.
The court refused a number of prayers for declarations of law subinitted by plaintiff and gave a number on part of defendant, and to its action in each respect plaintiff saved exceptions. Whether the former were correct and the latter incorrect as statements of law, we deem it wholly unnecessary to determine ; for, upon the finding- of facts by the court, it follows, from the principles herein announced, that there could have been no other than a judgment for the defendant.
3. when-tender of freight not
It is insisted that although the plaintiff made no ténder of the sum due, the defendant waived it, and that the verdict should have been for the plaintiff, upon the principle announced in the twelfth prayer for instruction on part of the plaintiff — that is, that the defendant waived such tender.
As the plaintiff announced that it proposed to tender the amount in the bill of lading, without indicating that he would give more, the defendant’s reply that it would accept only the sum demanded could not properly be held a waiver of tender of the sum legally due, even though it erroneously computed the sum due at an amount in excess of what it was entitled to demand. The plaintiff was not influenced by the reply to forbear making a tender of the proper amount, and it cannot be said that the defendant waived a tender which it had no reason to expect. The plaintiff was insisting that he was entitled to demand the stoves on payment of the freight specified in the bill of lading ; and the defendant, that it was entitled to hold them until its freight rate and the charges advanced by it were paid. Neither party seems to have noticed that the sum demanded included an excess of charges paid; and there is quite as much reason to hold that the defendant would have accepted the sum legally demandable, as that the plaintiff would have paid it. As the plaintiff made no tender of the sum due, and the defendant did not waive it, we think the twelfth declaration was properly refused.
Affirmed.