(concurring). In my opinion the cross-examination was unduly curtailed, as held in the main opinion, and there was evidence sufficient to take the case to the jury for a finding, upon the authority *318of Cole, to bind tbe company by tbe alleged agreement plaintiff claims to have entered into with defendant, through its agent.
There seems to me to be no question involved of an unlawful preference. Concededly the grain was billed as upon the legal transportation over a connecting carrier from Boscurvis, Canada, to Duluth, and a rate of 22 cents per hundred pounds collected. This rate is in evidence, and had previously been filed with and approved by the Interstate Commerce Commission, thereby validating not only the rate, but the route and the charge made upon that basis. The rate charged and collected was legal and upon a legal contract of carriage. Hence it was within the power of the carrier to allow any owner of property transported who “directly or indirectly renders any service connected with such transportation or furnishes any instrumentality used therein,, the charge and allowance therefor (that) shall be no more than is just and reasonable.” The word in parenthesis the writer has inserted that the language of the statute may be used. But was this hauling" on the ice, doing the transporting originally done by the connecting water carrier, a service to defendant carrier “connected with such transportation,” or “any instrumentality used therein” furnished by the shipper. The company has so treated it in billing the shipment and collecting the combined rate therefor. If the carrier could legally thus bill the freight as from the lake point to Duluth, and thereby treat its transportation by plaintiff from the lake points to Smith’s Landing as an independent carrier, it could make such contract and treat such transportation as service rendered to it in the transportation of goods from Boscurvis to Duluth. If it could route and charge 22 cents per hundred weight as upon a legal contract of carriage by it from Boscurvis to Duluth under these circumstances where the plaintiff delivered the goods at a point from which the transportation was but 17 cents to Duluth, it certainly could make this contract and agree that the plaintiff by what he had done had rendered “service connected with such transportation,” as service to the carrier. If the defendant can legally charge and collect the 22-eent rate as for a contract of carriage, it can agree that a service has been rendered to it by what has been done by plaintiff along that very route. If in law the grain was delivered at Smith’s Landing, instead of at Boscurvis, there was no authority for the collection of more than 17 cents per hundred weight. If *319on the basis of there being an established and approved 22-cent rate between said points, the company could agree that they have carried the grain between said points, and thereby recognize, under circumstances peculiar to this case, plaintiff to be its connecting carrier for a portion of the way, it could, as plaintiff claims it has, agree also that, in addition to its being such connecting transporting carrier for that portion of the route, plaintiff has also in addition thereto rendered it actual and unusual service, for which it should pay, and for which by contract it has agreed to pay, an added two thirds of the freight rate aggregating 5 cents a bushel all told. In the absence of pleading and proof that the amount agreed to be paid for such service is unjust and unreasonable, it must be presumed that the contract is a reasonable one, and the contract covering both rate and service just and enforceable.
In any event, under the facts peculiar to this case there is a sufficient basis, so that the charge cannot be said to have been agreed to be paid without color of right to contract therefor, and the question then must be one of fact. State ex rel. Railroad Commission v. Adams Exp. Co. 171 Ind. 138, 19 L.R.A.(N.S.) 93, 85 N. E. 337, 966; Gamble-Robinson Commission Co. v. Chicago & N. W. R. Co. 94 C. C. A. 217, and note thereto citing much authority (21 L.R.A.(N.S.) 982, 168 Fed. 161, 16 Ann. Cas. 613). It cannot be held as a matter of law that there was any intent either to give or receive a rebate or commit illegal acts. Without any pleading raising it, and without any proof of intent upon that issue, it should not be held that the parties have contracted for a preference rate simply because the carrier contracted to pay plaintiff 5 cents per bushel out of the rate of 22 cents per hundred collected upon the basis of the established rate from Boseurvis to Duluth.
The trial court was right in granting a new trial.
Christianson, J.(concurring specially). While I concur in an affirmance of the order granting a new trial, it seems to me that some of the questions discussed by my brethren Bruce and Goss do not require consideration on this appeal, and I do not care to express any opinion thereon.
It is undisputed that the Des Lacs Navigation Company during the fall of 1910 owned and operated a barge line from certain points on *320Dos Lacs lake to Smith’s (Landing), from which latter point the defendant had constructed a spur track connecting with its main line at ICenmare, North Dakota. It is also undisputed that the published tariffs gave a rate of 22 cents per hundred from the lake points, and 1Y ■cents per hundred from Smith’s and Kenmare, to Minneapolis, Duluth, or Superior respectively. It is also undisputed that the Des Lacs Navigation Company did not succeed in carrying all the grain in the elevators at the lake points. Plaintiff testified that, after the lake froze over, defendant’s general agent entered into an agreement with him whereby plaintiff agreed to haul the grain remaining in the elevators on sleighs over the route formerly used by the navigation company, for which hauling plaintiff was to receive 5 cents per -bushel. Defend•ant’s general agent admits some negotiations with plaintiff with respect to transportation of the grain over the ice, but denies that he agreed to pay 5 cents per bushel, and says that in such conversation he “referred to the tariff schedules.” It is conceded that plaintiff hauled in .all 8,836 bushels, 40 pounds, of wheat, 'and that defendant waybilled such shipments from the lake points, and at the destination collected freight charges from such lake points. At the time the agreement was made, the Des Lacs Navigation Company could no longer operate. It was to defendant’s interest to obtain freight shipments, and it was ■only natural to arrange, if possible, with or for some other earner to perform the service which the former connecting carrier no longer could perform. An agency may be created and authority conferred upon an agent not only by a precedent authorization, but also by subsequent ratification. (Comp. Laws, § 6328.) And ratification of part of an indivisible transaction is a ratification of the whole. (Comp. Laws, § 6332.) The arrangement to haul the grain was made by defendant’s general agent. Plaintiff performed the service agreed upon. Defendant accepted the benefits of the agreement. It received and billed the shipments and collected the joint through freight charges thus earned, and has retained the whole thereof. Even defendant’s counsel admit that the railroad company has collected and retained in its possession moneys for freight charges on the shipments in question in excess of those which defendant has earned at the rate of 5 cents per cwt., or about $24Y.40 in all, and that these moneys belong to the plaintiff. These charges were collected between January 1, 1911, and March 1, *3211911. The present action was not commenced until October, 1912, but the excess charges were never returned or offered to plaintiff. Defendant at no time repudiated, in whole or in part, the authority of its general agent to make the traffic arrangement with plaintiff to carry the shipments left by its former connecting carrier, but retained all the benefits received from such arrangement, • including the excess freight charges. Under these facts I do not believe that it can be said as a matter of law that the general agent had no authority to make ■such arrangement, and that the same is not binding upon the defendant.
Did the agreement violate the Federal interstate commerce law by allowing plaintiff a rebate? It seems to me that under the evidence in this case the question of rebating does not arise. The defendant’s general agent was called as a witness and testified upon the trial, and, as part of his examination, defendant’s counsel offered in evidence a joint tariff schedule showing the distribution of the freight charges between the barge line and the defendant railway company on shipments of grain, flax, and millet seed from the lake points to Minneapolis, Duluth, or Superior, and such joint tariff schedule recites that the targe Zine is to receive 5 cents per tushel and the Soo line the balance. The joint tariff schedule so offered in evidence is signed by T. E. Sands, .general freight agent of the defendant railway company, and bears the notation that it is “issued by J. H. Eees, chief of tariff bureau.” The division of rates between the barge line and the defendant railway ■company thus established was not contradicted by any evidence offered upon the trial. But defendant’s counsel argues that the schedule is erroneous, and that the words, “5 cents per bushel,” should read “5 cents per 100.” Defendant’s counsel contends that this mistake is ■conclusively established by the fact that the other schedules show that a rate of 17 cents per hundred was charged from Kenmare, and 22 ■cents per hundred from the lake points to Minneapolis, Duluth, or Superior, respectively.
The facts established by no means, justify the conclusion contended' for by defendant’s counsel. No evidence was offered to show the local rate from the lake points to Smith’s or Kenmare. The only schedules offered in evidence show the rate from Kenmare and the lake points to Minneapolis, Duluth, or Superior respectively, and the division of the joint rate from the lake points to the terminals mentioned between the *322barge line and tbe defendant railway company. Tbe published through rates are presumptively authorized by, and based upon, an agreement between the two earners. (Judson, Interstate Commerce, 2d ed. § 315.) Except as limited by the provisions of the interstate commerce act, the different carriers are free to adopt or refuse to adopt joint, through tariff rates, and have the right to agree to a joint through tariff on terms mutually satisfactory. (Southern P. Co. v. Interstate Commerce Commission, 200 U. S. 536, 50 L. ed. 585, 26 Sup. Ct. Pep. 330.) And the propriety and reasonableness of such rates (and in case of disagreement between the carriers), the proper division thereof as well, are matters to be determined in the first instance by the Interstate Commerce Commission. “Through rates and through billing are matters of agreement among carriers engaged in interstate commerce, excepting where established by order of the [Interstate Commerce] Commission. . . . Through rates are not required to be made on a mileage basis, nor local rates corresponding with the division of a joint through rate over the same line.” Judson, Interstate Commerce, 2d ed. § 180. In the recent case of Empire Coke Co. v. Buffalo & S. R. Co. 31 Inters. Com. Rep. 573, 579, it was said: “The Commission has repeatedly held that divisions are matters of agreement among participating carriers, and, while they may be considered as evidence, they are not regarded as conclusive, and ordinarily afford but little basis upon which to determine the reasonableness of joint rates. As we stated in Florida Mercantile Agency v. Pennsylvania P. Co. 21 Inters. Com. Pep. 85, 87: What the public is primarily interested in is the charge for the service rendered, irrespective of the divisions of the rate, and if the rate itself is reasonable and just the fact that it is unequally divided between the participating lines is not a basis for reduction. There may be many reasons why a particular carrier would be willing to accept a very small proportion of a joint rate in order to secure business, and it is within its rights in bargaining with its connections for tonnage so long as it does not undertake to haul one class of traffic at rates so low as to thereby burden other traffic.” Where a joint rate has been established by order of the Interstate Commerce Commission, and the,connecting carriers are unable to agree upon division of the through rates, the Interstate Commerce Commission has held that “such division should be made with respect to earnings of the lines to and from *323points of interchange,” and that “in establishing equitable divisions it is necessary to have regard for all the surrounding circumstances and conditions.” (Pates on Lumber & Other Forest Products, 31 Inters. Com. Rep. 673, 676.)
The schedule in question was offered in evidence by the defendant. The trial court based its order granting a new trial largely thereon. The correctness of the schedule was never challenged by anyone in the court below. There seems to be no good reason why the defendant railway company and the barge line might not lawfully have agreed upon a division of the joint rate on the basis shown therein, and certainly an appellate court cannot accept counsel’s argument as conclusive evidence of the incorrectness of a tariff schedule received in evidence, and considered to be correct in the proceedings had in the court below.
The main object of the agreement between the plaintiff and defendant’s general agent was to substitute plaintiff as a carrier in lieu of the navigation company. The purpose of this agreement did not contravene any provision of law or public policy. The only part of such agreement that could possibly be violative of law or public policy is the amount of compensation to be paid. There is no contention that any illegal intent existed on the part of either party either to give or receive a rebate. They were dealing with a condition brought about by the failure or inability of the navigation company to carry the grain. The prime object of the arrangement between plaintiff and defendant’s general agent was lawful, and any actual intent to effect an unlawful purpose or object is negatived by the testimony and every fact and circumstance in the case. It is true that in order to constitute a violation of the statute a specific criminal intent need not be shown to exist; that moral turpitude or wicked intent is not essential to a conviction; and that the only criminal intent requisite to the offense created by the statute is the purpose to do an act in violation thereof. (See Armour Packing Co. v. United States, 209 U. S. 56, 52 L. ed. 681, 28 Sup. Ct. Rep. 428.) But it is equally true that a contract for a rebate in violation of the interstate commerce act does not invalidate the contract of affreightment, but such contract remains binding upon the carrier. Merchants’ Cotton Press & Storage Co. v. Insurance Co. of N. A. 151 U. S. 368, 38 L. ed. 195, 4 Inters. Com. Rep. 499, 14 Sup. Ct. Pep. 367. And it has also been held that it is proper to show *324that there was no intent to violate the act, i. e., that there was no intent to do what is prohibited by the act. (Atchison, T. & S. F. R. Co. v. United States, 95 C. C. A. 446, 170 Fed. 250.)
Defendant’s counsel concedes that if the division sheet offered in evidence by himself is correct, that then no illegal preference or rebate was granted to the plaintiff, as plaintiff would then merely be receiving the same compensation which the former carrier, the navigation company, had received under the joint tariff arrangement for carrying grain over the same route. Therefore if the division sheet is correct this disposes.of the question of preference. But even though the division sheet is erroneous, and the navigation company as a matter of fact was to receive only 5 cents per hundred weight instead of 5 cents per bushel, the facts would still remain that the defendant operated under the traffic arrangement with plaintiff, and billed shipments as originating at the lake points, and concededly collected freight charges from the lake points to the points of destination, and in any event has in its possession at least $247 of moneys which in good conscience belong to the plaintiff. Having participated in the traffic arrangement and come into possession not only of the profits belonging to it under such agreement, but the profits belonging to plaintiff as well, defendant should not be permitted to interpose fhe objection that the transaction or agreement which produced the fund was in violation of law. McBlair v. Gibbes, 17 How. 232, 15 L. ed. 132; Brooks v. Martin, 2 Wall. 70, 17 L. ed. 732; 9 Cyc. 557 et seq. Plaintiff should in any event be permitted to recover the amount which defendant charged and received from the shipper as freight charges from the lake points to Smith’s. The fact that plaintiff happens to be the owner of the grain transported does not necessarily enter into the transaction. Under the evidence in this case he, under an arrangement with defendant’s general agent and at his request, did perform the service which a former connecting carrier was no longer able to perform, and as a result of such service the plaintiff has collected the same freight charges which it would have collected if the former connecting carrier had performed such service. This being so, no good reason exists why plaintiff should not recover the same compensation which the former connecting carrier would have received therefor. And under the evidence in this case that is all which he seeks to recover. Whether the defendant could *325lawfully enter into a contract to pay the plaintiff a larger sum than that paid to the former carrier, and whether such agreement, if made, would constitute an unlawful preference in the nature of a rebate, is a matter upon which I express no opinion, as the record in this case neither justifies nor requires a decision upon that point.