ing either of these conclusions in the present case. While the rate cannot be called a low one it seems to be about in line with similar rates elsewhere and can hardly be pronounced unreasonable.

The complainants claim, in the third place, that even if the present rate is reasonable and the present relation of rates lawful, this was not the case while the rate to Lynchburg was 20 cents per hundred pounds.

The complainants began shipping bananas from Charleston about May 1, 1902, and from that date until April 25, 1903, the Lynchburg rate was 20 cents, the Danville rate being then the same that it now is. During all that time the rate from Baltimore to Lynchburg was 33 cents. Assuming that the defendant must meet and might lawfully meet the Baltimore rate to Lynchburg, the complainants urge that there were no competitive conditions which required the making of a rate of 20 cents or indeed a lower rate than 33 cents. The defendant does not seriously contend that its rate of 20 cents at Lynchburg was forced by competitive conditions. The manner in which it was first established has already been stated; its continuance seems to have been an oversight. We find as a matter of fact that from May 1, 1902, until April 25, 1903, there were no competitive conditions at Lynchburg which required or justified the naming of a lower rate than 33 cents from Charleston. The present rate is 3512 cents, but it will be remembered that just before that rate was put in effect the rate from Baltimore had been advanced from 33 to 3512 cents. Richmond may be omitted from our consideration since the same conditions control there and at Lynchburg.

Between May 1, 1902, and April 25, 1903, the complainants shipped five carloads of bananas from Charleston to Danville upon which was paid $86 per car, being 43 cents per hundred pounds upon a minimum of 20,000 pounds. The first of the expense bills produced dated May 15, 1902, shows upon its face that the rate was computed at 41 cents, the total amount being $82, but we think it fairly appears from the testimony that this error was subsequently corrected and the full rate paid. If the complainants are entitled to recover as damages the dif

ference between the rate actually maintained by the defendant at Lynchburg and the lowest rate which it might justly maintain at that point, viz., 13 cents per hundred pounds, their damages upon these five cars would amount to $130.

The complainants testified that the maintenance of the lower rate at Lynchburg restricted their territory and that for this reason they were unable to do as extensive a business as they otherwise would, or as they in fact did after the Lynchburg rate was advanced. We find that the complainants were damaged as stated by them, but there is nothing in this record from which the amount of such damages can be estimated.

During this same period from May 1, 1902, to April 25, 1903, the complainants handled 17 carloads, minimum weight 20,000, between Charleston and Danville and Lynchburg in the following manner and under the following circumstances:

Not being able to dispose of an entire carload of bananas at Danville it occurred to the complainants that they might handle part of the car at Danville and sell the remainder at Lynchburg. They accordingly purchased a carload of bananas at Charleston and ordered the same shipped to Lynchburg. They then applied to the station agent at Danville for permission to open the car when it reached that point, remove one half the contents and send the balance on to Lynchburg. The local rate from Lynchburg to Danville at that time upon 10,000 pounds or over was 28 cents per hundred pounds, and the complainants stated to the agent that if allowed to remove one half the contents of the car they would pay the local rate on 10,000 from Lynchburg to Danville for that privilege. The station agent thereupon telegraphed the assistant general freight agent of the defendants at Richmond for instructions, and was notified that he might grant the request of the complainants in this instance, but that such course of action must not be extended to the future. The complainants knew that the station agent had wired Richmond and received instructions from there to grant their application; they did not know that the agent was instructed to limit the privilege to that single shipment.

When this car arrived at Danville the complainants opened it, removed one half the contents and sent the balance on to Rich

mond. The station agent at Danville made out an expense bill showing a shipment of 10,000 pounds of bananas from Lynchburg to Danville at 28 cents per hundred pounds, which the complainants paid.

This proceeding was repeated during the period before named in case of 16 other carloads. The station agent of the defendant at Danville knew of and permitted what was being done. His superiors had no knowledge of it and gave orders to discontinue the practice as soon as it was brought to their attention. The rule of classification then in force on the defendant's line over which this traffic moved prohibited the removal of any portion of a carload shipment en route unless the less than carload rating was applied both to the quantity removed and the remainder of the carload.

CONCLUSIONS.

The carload rate of 43 cents per hundred pounds from Charleston to Danville has not been found to be unreasonably high in itself, and it has been found that the lower rate of 3512 cents per hundred pounds from Charleston to Lynchburg is forced upon the defendant by competition which it does not and cannot control, and which justifies a lower rate at Lynchburg than Danville. Upon these findings of fact the rates now in effect are not in violation of the Act to regulate commerce according to those judicial decisions which have been often referred to and need not be again cited here.

The real question presented by this record is as to the rights of the complainants, under the tariff in force previous to April 25, 1903. It will be remembered that up to that date the rate to Lynchburg was 20 cents, which has been found to be 13 cents per hundred pounds below what was justified by competition from Baltimore or elsewhere. It is plain that the relation of rates existing during that period between Danville and Lynchburg was in violation of the third and fourth sections of the Act to regulate commerce. During the period the complainants made shipment of five carloads of bananas to Danville upon. which they paid a rate of 43 cents per hundred pounds, and

that has been found to be a reasonable charge in itself. To what damages then is the complainant entitled ?

The Act to regulate commerce provides that railway charges shall be reasonable and it further provides that the relation of the charges imposed upon different shippers shall be just. These complainants are interested in the relation rather than in the absolute reasonableness of the rate. It is a matter of no special concern to the fruit commission merchant at Danville whether the rate on bananas is a few cents more or less per hundred pounds, but it is of vital importance to him that his rate shall be no higher than that of his competitor either at Danville or at an adjacent point of distribution. These complainants have shown that the low rate to Lynchburg enabled dealers located in that city to invade the territory naturally tributary to Danville and thereby restricted their field of operations and prevented them from transacting business at all at certain points. While it has been found as a matter of fact that the business of the complainants was unfavorably affected by the rate granted their competitors at Lynchburg, there is no evidence, and it is difficult to see how there could be satisfactory evidence to show the amount of the damages sustained by the complainants on that account.

We do not think, however, that the complainants are for this reason precluded from all claim to damages. The defendant has accorded to the competitors of the complainants at Lynchburg a rate 13 cents per hundred pounds lower than it lawfully might; it must, therefore, give the complainants the same reduction in rate. The complainants should be allowed upon all shipments made by them a deduction of 13 cents per hundred pounds from the rates actually paid. This is the only measure of damages which can possibly be applied; to refuse this is to entirely excuse the defendant from the consequences of its unlawful act and to deny the complainants all remedy for the injury which they have sustained. The application of such a rule inflicts no hardship upon the defendant since it is simply required thereby to maintain such a relation of rates as the law directs; it does not afford the complainants complete relief, for while the rate which they are finally compelled to pay is the

just one, the recovery allows nothing for the business which they have in the meantime lost.

This rule of damages was applied by the Commission in the somewhat similar case, Board of Trade of Lynchburg. v. Old Dominion Steamship Co. 6 I. C. C. Rep. 632, 646, and was adopted by the English courts after most elaborate discussion. Denaby Main Colliery Co. v. Manchester, Sheffield & Lincolnshire Railway Co. L. R. 11 App. Cas. 97. The defendant railway in that case extended from the southern Yorkshire coal fields to Grimsby and transported from those fields to that point coal for one Bannister and also for the complainant, the Denaby Company. The coal at Grimsby was sold for land delivery and also for water shipment to various points. There was an established rate which was ordinarily charged both to Bannister and to the Denaby Company alike, but it appeared that when Bannister made shipment of this coal to certain ports on the English coast, a rebate of 6d per ton was allowed, and that when he made shipment, by the Hamburg-American steamers to the West Indies a rebate of 8d per ton was granted. These allowances were made for the purpose of enabling Bannister to develop a trade in those sections.

The Denaby Company claimed that this allowance to Bannister was illegal and sought to recover a large sum in the way of damages. The court below held that the granting of the rebates was in violation of the provisions of the English act, but that inasmuch as it did not appear that the Denaby Company had ever made shipment of coal to these English ports or to the West Indies, or had ever desired to make such shipment, or had ever applied to the defendant for a rate applicable to coal for such shipment, and inasmuch as the Denaby Company and Bannister had paid exactly the same rate upon coal which they had in fact sold in competition with each other, no damages were recoverable. The House of Lords reversed this latter holding. Its conclusion apparently was that the facts presented a case of overcharge. The law required the defendant to carry for all shippers at the same rate; it had in fact allowed Bannister a rebate of 6d upon certain shipments and 8d upon certain other shipments; it must carry the same quantity for the Denaby