ON MOTION FOR A REHEARING. Defendant, on motion for a rehearing, complains that we have not discussed Yazoo Mississippi Valley Railroad Co. v. Zemurray, 238 F. 789. In that case the proper amount of the freight was $45, but the railroad company made delivery to the consignee, and by error collected only $9. Thereafter, demand was made on the consignee for the balance. He did not pay. The railroad company wrote him several letters, but did not sue him. It then made demand on the consignor. The consignor refused to pay, and the railroad company sued him. The District Court held that the railroad company having elected to collect freight charges from the consignee, it would be inequitable to permit the carrier to change its base and proceed against the consignor. On appeal, the Circuit Court of Appeals apparently approved this ruling, but affirmed the judgment of the District Court on other grounds. That decision, in so far as it supports the defendant's view in this case, is out of accord with all of the other decisions that have been brought to our attention, including the decisions of the United States Supreme Court. We therefore do not follow it.
The Commissioner recommends that defendant's motion for a rehearing be overruled.