The statute provides that "no railroad owned or operated in this state shall charge a higher tariff on like classes of freight by the car-load when delivered at any station on its line than is charged to deliver the same at any station on the road where the transportation is for a greater distance," or, more briefly expressed, no railroad shall charge more for transporting freight by the car-load any distance than it charges for transporting the same a greater distance, and imposes a fine for violating its provisions, to be recovered in an action of debt. Laws of 1879, c. *Page 258 55. This, excluding the provision for a penalty, is substantially a reenactment of the common law. McDuffee v. Railroad, 52 N.H. 430, 457; Railroad v. Forsaith, 59 N.H. 122. The railroad on the west bank of the river to Hooksett, and the railroad to Hooksett by way of Suncook, are both operated by the defendants, and for the purposes of this question are to be treated as parts of the same road. G. L., c. 1.59, s. 1; Pierce v. Concord Railroad, 51 N.H. 590. The distance from Concord to Suncook is seven miles, and to Hooksett nine and one half miles. The defendants charged for transporting the car-load of corn from Ogdensburg to Hooksett $32.85, and to Suncook $37.95. Whatever part of the whole sum charged was appropriated for the freight over other roads, the defendants charged and received, for transporting the car-load upon their own road from Concord to Suncook, $5.60 more than they charged for transporting the same the greater distance from Concord to Hooksett. A more striking instance of the mischief the statute was intended to remedy could hardly be presented. The defendants were not a party to and have no concern with the agreement of the vendors to deliver the corn to the plaintiffs free if expense at Hooksett. Their own contract to transport the corn to Hooksett does not relieve them from liability. If they had performed that contract and insisted upon the plaintiffs; taking a delivery of the corn at Hooksett, it may be that there would have been no just ground of complaint. But they did not do so. By their transportation of the corn to Suncook, and the plaintiffs' acceptance of it there instead of at Hooksett, the original contract was abandoned, and in its place a new one to haul it to Suncook was substituted, under which the service was rendered and the right to freight accrued. The defendants cannot treat the contract as rescinded so far as it relates to the service to be rendered, and in force for the purpose of measuring their compensation. Whether, upon a contract to haul a car-load of merchandise from Concord to Suncook by way of Hooksett, the defendants can or cannot under the statute properly charge a greater sum than their rate to Hooksett, either in case they literally perform the contract or in case they in fact haul it by the direct and shorter route to Suncook, are questions which need not be determined, because the case shows no such contract.
In Commonwealth v. Worcester Nashua Railroad, 124 Mass. 561, the question arose upon demurrer, and the declaration did not show that the defendants charged or received a greater sum than the statute allowed. The ruling in regard to the statute of limitations was correct.
Exceptions overruled.
SMITH J., did not sit: the others concurred. *Page 259