(dissenting). Some admitted facts, which seem to me to be material to the question decided, do not appear in the foregoing opinion. In substance and effect they are as follows: Wallingford Bros., the defendants, bought the car of corn, in respect of which the freight undercharge occurred, from their vendor at Green Mountain, Iowa, and directed its shipment to Cedarvale, Kan. They sold it to be delivered at Cedarvale at a specified price, which included all freight charges to that place, whatever they might be. The corn was transported from Green Mountain to Cedarvale. In dealing with their vendor at the point of origin, defendants were to pay the freight charges, and they specifically reserved the right to route the shipment and also to change its destination. In selling to their vendee at Cedar-vale, they likewise reserved the right of routing, and they designated the railroad of the plaintiff as the final carrier. The transportation was at the instance of defendants; they caused it. As between the three parlies successively owning the corn, they alone were to pay the freight charges. The others were not financially interested in the amount of the charges. The price their vendor was to receive was f. o. b. Green Mountain. The price their vendee was to pay them was-basis Cedarvale, which, as the shipment actually terminated there, was in effect f. o. b. Cedarvale. Had the vendee diverted the shipment, ihe rate to Cedarvale would have been the measure of defendants’ liability to them for the freight; hut it was not diverted. Defendants left in the hands of their vendee a part of the contract purchase price with which to pay the freight to Cedarvale, and when they did so the vendee became their agent in that particular. The vendee ivas to pay so much for the grain at Cedarvale, no more, no less, and was not financially interested in the amount of the freight, or in its payment, except as necessary to get possession from the railroad. The course of the bill of lading' and the drafts- was consistent with the above.
ft is argued by counsel that under the decisions of the courts the railroad could not maintain an action for the undercharge against defendants’ vendee who got the com at Cedarvale. Since the railroad must under the law require somebody to pay, it would follow, if the argument is sound, that the action would have to be against defendants’ vendor at Green Mountain. But the vendor sold to defendants f. o. b. Green Mountain, and simply followed their shipping directions. If it were compelled by judgment to pay, it could in turn compel reimbursement from defendants; and thus the opinion of my Brothers would operate in a roundabout way to secure justice, when, as it seems to me, there is a plain, direct road. A bill of lading is not conclusive of the relations of the parties named as consignor and consignee to the property transported. Inquiry into the transaction in which it originated is admissible. That is familiar law, and it accords with common knowledge that very frequently one or both of them act for undis*952closed principals. It is easily conceivable that the "notify party,” so called, may be both consignor and consignee in 'substance and fact. The right of a railroad to a freight charge, the amount of the charge, and its legal duty to require payment in full, do not arise from the bill of lading. The right arises from the fact of carriage or transportation ; the amount is* determined by application of the published schedules; and the duty to collect in full is prescribed by statute carrying penalties.
It may be that the petition in the case will not, without amendment, support a judgment for plaintiff upon the admissions in the answer; but a decision of what will eventually be the controlling question was sought in the trial court and here by both parties.