On Petition for Rehearing.
(200 Pac. 1034.)
Rehearing Denied.-
For the petition, Messrs. Teal, Minor S Winfree.
Contra, Mr. A. C. Spencer, Mr. Blaine Halloch, and Mr. W. A. Bobbins.
BURNETT, C. J.The defendant complains, in substance, in its petition for rehearing, that it was denied the privilege of showing how many cars of those which carried all its shipments of rock from *594Quarry, Oregon, to Grays Harbor, Washington, were loaded under their marked capacity. The stipulation of facts upon which this cause was tried in the court below states that its intention was “to dispose of all the issues raised by the pleadings respecting all matters except those covered by plaintiff’s third further and separate cause of action, defendant’s answer and plaintiff’s reply thereto.” As stated in the defendant’s brief, the question of the third further and separate cause of action was submitted to a jury, and the evidence being conflicting, it “may be said to be out of the case.” The stipulation discloses that the only tariff actually filed with the Interstate-Commerce Commission and under which the - shipments moved, “provided for the transportation of rock in car loads from Quarry, Oregon, to Aberdeen, Washington, a rate of 3% cents per hundred pounds, minimum weight marked capacity of car used.” It is further stipulated in the sixth paragraph that, “upon said shipments, except as hereinafter alleged, plaintiff charged the defendant and defendant paid to plaintiff certain sums of money calculated upon the basis prescribed by said tariff O.-W. R. & N. 2-A, I. C. C. 107, and said charges so collected by plaintiff from defendant aggregated an amount of forty-one thousand, two hundred seventy-two and 46/100 ($41,272.46) dollars.”
4. It is true that it is also stipulated that the rock shipped weighed according to government figures ascertained as aforesaid, 53,170.42 tons, and that on the basis of that weight figured at 3% cents per hundred pounds without regard to minimum weight as disclosed by marked capacity of cars used, the' freight charge would have amounted to $1,394.39 less than that actually paid to the plaintiff. Reduced to its *595lowest terms, the tariff required computation on minimum weight marked capacity of cars used. It is stipulated that the money paid was calculated on the basis prescribed by the tariff. Lawfully, it could not he calculated on any other basis, because of the well-known rule that the carrier is not allowed to collect less or more than the rate prescribed by the tariff filed with the Interstate Commerce Commission. The government officials in charge of the jetty work weighed the rock without reference to the minimum weights marked as capacity of the cars employed. The effort of the defendant was to ignore the stipulation, leave out the element of minimum weight marked capacity of the car, and calculate on the actual weight. Stipulating that the freight had been computed according to the tariff with the element of minimum weight marked capacity included, the defendant sought to open the question again and recast the figures the parties had agreed to in the stipulation. On this point, the defendant stipulated itself out of court. The calculation could be made upon hut one basis. We cannot allow the defendant to ignore its stipulation that the charge was computed on that basis.
Whatever was the actual net avoirdupois weight of the shipments, the element of minimum weight marked capacity, appearing as it does in the tariff filed with the interstate commerce commission, would control this. For example, if the minimum marked capacity of a car was 80,000 pounds and it was loaded with hut 70,000 pounds, the calculation would be on the basis of 80,000 pounds; while if the car was loaded with 100,000 pounds, the computation of freight would be on the latter figure. Having stipulated that the calculation was made on the basis re*596quired by tbe tariff, tbe defendant cannot open that question and undertake to show a different computation.
The petition for a rehearing must be denied.
Rehearing Denied.