The only assignment of error relied on in the brief of tbe appellant is the fourth, and as to this it is contended : (1) That the act -(Rev., sec. 2644) imposing a penalty for nonpayment of an overcharge of freight is invalid, because it is an interference with interstate commerce. (2) That to' permit a recovery of the penalty when the plaintiff has failed to sustain his claim in full would be a taking of the property of the defendant without due process.
The first exception of the defendant is disposed of by the decision in Thurston v. R. R., 165 N. C., 598, and it is not necessary to consider it further.
The second presents more difficulty, but when the nature of the demand and the facts connected with the filing of the claim by the plaintiff are considered, we are of opinion the penalty can be legally enforced.
Section 2634 of the Revisal imposes a penalty for failure to pay a claim for loss or damage to property while in the possession of a common carrier, but provides that no penalty shall be recovered unless the full amount of the claim is recovered.
In proceedings under this section, the amount is uncertain and unascertained, and as the defendant has no .means of determining the exact amount due, the burden is upon-the plaintiff to make good his claim, before he can recover the penalty, as otherwise the carrier, could be penalized for refusing to pay an unjust and excessive demand.
It was upon this ground the judgment of the Supreme Court of Arkansas was reversed in R. R. v. Wynne, 224 U. S., 354, in which the owner of property damaged filed a claim against the carrier for $500, and only demanded in his complaint and recovered $400, the Court saying: “It will be perceived that while, before the suit, the owner demanded $500 as damages, which the company refused to pay, he did not in his suit either claim or establish that he was entitled to that amount. On the *87contrary, by tbe allegations in his complaint he confessed, and by the verdict of the jury it was found, that his damages were but $400. Evidently, therefore, the prior demand was excessive and the company rightfully refused to pay it. And yet the statute was construed as penalizing that refusal and requiring a judgment for double damages and an attorney’s fee. In other words, the application made of the statute was such that the company was subjected to this extraordinary liability for refusing to pay the excessive demand made before the suit.”
These objections do not exist when the demand is for an overcharge of freight which consists, under section 2642 of the Revisal, in collecting more than the rates appearing in the printed tariff of the carrier.
The carrier knows the amount collected, and has in its own possession its tariff, fixing the legal rate, and can ascertain with exactness the amount of overcharge. It can, therefore, protect itself against an unjust demand by tender of the. amount due, and thereby escape liability for the penalty.
It appears in this record that the plaintiff did not intentionally claim more than it was entitled to, and that its error in stating the amount was brought about by the conduct of the defendant in misinforming him as to its rates, and that the tender by the defendant was less than was due on any computation.
The defendant ought not to be permitted to mislead the plaintiff and induce it to file a claim for more than it can recover, and then escape liability upon the ground that the claim is excessive.
The defendant is, in our opinion, liable for the penalty. Statutes of similar import have been upheld. R. R. v. Vinegar Co., 226 U. S., 219.
No error.