This was a suit in one hundred and sixty-two counts to recover penalties for overcharges for transportation of railroad cross ties from Higbee to Kansas City. There was a verdict for plaintiff on the last sixteen counts, and judgment for defendant on the others.v Plaintiff, also, appealed, but as errors have not been assigned on his appeal, it will not be noticed.
1. Error is assigned in overruling defendant’s motion in arrest. Section 833, Revised Statutes, determines the *94-class to which this freight belongs; section 834 the maximum rate of charges ; and section 835, prohibits the ■company from charging a higher rate, makes it a misdemeaner so to do, and gives to the aggrieved party a right of action, and allows him to recover treble the excess. Each count sets out the distance between the two points, the legal rate of charges, the amount charged, .and the excess, prays judgment therefor, and that the •same be trebled “according to the provisions of section 835 of the statutes of this state. ’ ’ The statute is a public act. It is only necessary for the plaintiff to state the facts which bring his case clearly within the law. Kennayde «. Pacific R. R., 45 Mo. 258. This he has not ■only done, but he points out the sections by which he seeks to" recover the penalty. Nor does the fact that the petition alleges the maximum rate to be $20.50 per car, when by the law it was $22.50, vitiate the declaration.
2. There was no error in overruling the demurrer .to the evidence at the close of plaintiff’s case. The plaintiff testified both on direct and cross-examination that he shipped the ninety-nine cars at $22.50 per car; that he was charged more than that; that the amounts ■charged are stated in these sixteen counts, and that he paid the charges. It appears from the cross-examination that he sold the ties previous to the shipment, and they were consigned to the purchaser, who attended to and paid the freights. He did not know of his own knowledge how much the defendant received. There was no objection to any of the evidence, nor was there any motion to exclude it or any part from the consideration of the jury. We cannot say there was no evidence of the amount charged and paid. Plaintiff testified that the ties, would weigh from one hundred to one hundred and ten pounds each, but there was no evidence as to how many were put upon a car. Many cars were loaded and shipped, and, until the contrary appears, we *95must presume they were of the regulation weight, i. e., 20,000 pounds.
3. The plaintiff testified that these shipments in ■question were made under an arrangement whereby he was to pay $22.50 per car load. The defendant asked an instruction to the effect, that if these ties were shipped under such a special contract the plaintiff could not recover, although defendant charged more than that rate, which was refused. The agreement was for legal rates. The plaintiff is not remitted to an action for breach of the contract. The statute, designed as it is to protect shippers from overcharges, cannot be defeated in this way. The special contract constituted no defence.
4. It appears that some of the shipments sued for were for ties owned by plaintiff and his brothers as partners, and that these brothers had released the company from all claims on account of overcharges. Whether the ties in question belonged to the plaintiff or the late firm, was fairly submitted to the jury. There was evidence, we think, upon which to base the instructions. We may add the shipments appear to have been by and in the name of the plaintiff. Judgment affirmed.
Sherwood, J., dissents. The other judges concur.