The complainant also claimed to recover $28.52, that being the expense of sending its agent to these stations upon the line of the defendant at which the cotton seed was awaiting shipment for the purpose of obtaining such shipment. We find that the above amount was paid by the complainant for that purpose. Another item of damage claimed by the complainant was the increased cost of certain hulls which it had been obliged to purchase. It seems that earlier in the season the complainant had contracted to feed certain cattle with hulls which it expected at that time to produce at its mill. The season was a short one, the quantity of hulls produced unusually small, in consequence of which the complainant was obliged to purchase hulls to fill its contract. Its claim was that the cost of these hulls and the expense of taking them to its factory was greater than as though the hulls had been produced by the manufacture of this seed. The quantity of hulls which would actually have resulted from the manufacture of these 640 tons of seed would have been very much less than the amount purchased by the complainant, and we think this item is already embraced in our allowance of $3.50 per ton. The complainant still further claimed that but for the refusal of the defendant to apply the 121/2-cent rate to Texarkana it would have bought other cotton seed in this section from which additional profits would have accrued, and its testimony tended to show that it might probably have made such. purchase. There is, however, nothing in this record upon which a finding as to the amount of such probable purchases can be based. The complainant insisted that it relied upon the representation of the joint agent of the Texas & Pacific and the St. Louis, Iron Mountain & Southern at Texarkana that the through rate would not exceed 1712 cents. We find that the person in charge of this office only intended to give the agent of the complainant such information as the tariffs themselves afforded, and that the agent of the complainant so understood it. No attempt was made to quote any joint through rate, as sufficiently appears from the fact that the first shipments which actually went through to Hope were not billed to the complainant at Hope, as they would have been in case of a through shipment upon a joint rate, but to the complainant at Texarkana in care of the St. Louis, Iron Mountain & Southern Railway. The testimony shows that cotton mills do not ordinarily run the entire year, for the reason that the supply of seed from one crop is exhausted before the next crop becomes available. It appeared that the mill of the complainant was obliged to shut down this year earlier than usual through inability to obtain seed with which to operate. CONCLUSIONS. Was the complainant entitled to ship this cotton seed to Texarkana upon a rate of 1212 cents? We express no opinion as to whether the defendant might lawfully make a special rate on this commodity upon condition. that it was consumed in mills located at Texarkana, or upon condition that the product, or a portion of the product, which resulted from the consumption of the seed should be shipped out over the line of the defendant. These questions are not presented by this record, for the tariff in question contained no limitation whatever. The defendant urges, however, that the tariff applied only to local shipments to Texarkana and that the real movement of this cotton seed was to Hope, Arkansas; hence, it might properly refuse to apply this rate to that movement. It was the purpose of the complainant to send these cars over the line of the defendant to Texarkana, and from Texarkana to Hope by the St. Louis, Iron Mountain & Southern; and the first carloads were in fact taken through to destination in that manner. This we think was a continuous shipment from the point of origin to Hope. If so, the Texas & Pacific was clearly within the law in insisting that the 12/2-cent rate to Texarkana should not apply. It might possibly, had it seen fit, have treated a delivery to the Iron Mountain road at Texarkana as a completion of its contract for carriage, and the Iron Mountain road might in its turn, perhaps, have treated the shipment as a local undertaking from Texarkana to Hope; but it seems plain to us that the Texas & Pacific might also, if it elected, and perhaps should insist upon the transaction being interpreted according to the fact. If there was in effect a joint through rate applicable to this movement, it was the right and possibly the duty of the defendant to insist upon the application of that rate. Suppose this case were reversed, that there was in effect a joint through rate upon this commodity between Hope and these stations in Louisiana less than the sum of the rates to and from Texarkana. Clearly, these railroad companies would have no right to treat these shipments as two distinct. local transactions, thereby obtaining the higher local rates. Not only does the 7th section of the Act to regulate commerce specifically forbid this, but without that section no such subterfuge would be permitted. So, in this case, if the complainant actually ships through from a point on the defendant's line in Louisiana to Hope over these two railroads, that should be treated as a through shipment. The Hope company, however, attempted to ship this cotton seed to Texarkana, and to receive a delivery of it at Texarkana for the purpose of subsequently reshipping it by the St. Louis, Iron Mountain & Southern to Hope. In so doing we think the complainant was within its legal right. The tariff of the defendant named this rate of 122 cents to Texarkana and no limitation was placed upon the use of that rate. Under the tariff any person might ship to any other person. The defendant had no right to refuse to receive shipments because some particular disposition was to be made of the cotton seed upon its arrival in Texarkana. It might insist that the seed should be delivered at Texarkana and removed from the car, but it could not go further and say that the Hope Company, having taken possession of it, might not subsequently deliver it to the Iron Mountain road for transportation to Hope. While the movement in that case would be an interstate movement which Congress might, if it saw fit, control, it would not be a through shipment by rail, which now falls within the Act to regulate commerce. It follows, therefore, that in declining to receive this cotton seed for movement to and delivery at Texarkana upon the published rate of 122 cents, the defendant was in violation of law. The complainant had under contract 640 tons of cotton seed which, but for the unlawful conduct of the defendant, it would have transported to its mill and used there. It needed this seed in its business, as appears from the fact that it was compelled to shut down earlier than usual for want of supplies. It has been found that the seed at the mill would have been worth to the complainant $3.50 per ton more than the cost of getting it there. Upon this finding of fact the complainant is entitled to recover as damages the sum of $2,240. Such damages are not speculative. They arise out of an actual transaction and are susceptible of exact computation. The profits which the complainant claims it would have made upon the purchase of other seed are upon this record too problematic to admit of ascertainment and must therefore be disallowed. The complainant is not entitled to recover the $20 which it paid for transferring the five cars of seed at Texarkana, for the defendant was under no legal obligation to make this transfer or permit its cars to go forward. Neither is the complainant entitled to recover the $28.52 which it expended in attempting to prevail upon the agents of the defendant to send forward this seed. While that was an expense which grew out of the unlawful refusal of the defendant, it was not the direct and natural result of that act. The Commissioner who heard the testimony in this case suggested that it might be the duty of a shipper under these circumstances to pay the rate demanded and sue for the overcharge, but further consideration leads to the conclusion that such cannot be the law. While a plaintiff may not unnecessarily aggravate his damages, but must rather use reasonable care to mitigate them, this duty can hardly extend to complying with an unlawful demand of the defendant. If the defendant insists upon that demand it must assume the consequences which may naturally flow from refusal to comply with it. An order will issue directing the defendant to pay the complainant the sum of $2,240 with interest from January 1, 1904. INDEX. ACT TO REGULATE COMMERCE. CONSTRUCTION OF SECTION ONE. Wichita v. Missouri P. R. Co. 35. Chamber of Commerce of Chattanooga v. Southern R. Co. 111. Glade Coal Co. v. Baltimore & O. R. Co. 226. Denison Light & Power Co. v. Missouri, K. & T. R. Co. 337. Re Pere Marquette R. Co. 360. Wrigley v. Cleveland, C. C. & St. L. R. Co. 412. Chicago Live Stock Exchange v. Chicago G. W. R. Co. 428. Duluth Shingle Co. v. Duluth S. S. & A. R. Co. 489. H. B. Pitts & Son v. St. Louis & S. F. R. Co. 684. H. B. Pitts & Son v. Atchison, T. & S. F. R. Co. 691. CONSTRUCTION OF SECTION TWO. Re Transportation of Salt, 148. Central Yellow Pine Asso. v. Vicksburg, S. & P. R. Co. 193. Re Division of Joint Rates, etc. 385. Wrigley v. Cleveland, C. C. & St. L. R. Co. 412. Re Transportation of Coal & Mine Supplies, 473. Duluth Shingle Co. v. Duluth, S. S. & A. R. Co. 489. CONSTRUCTION OF SECTION THREE. Re Transportation of Salt from Hutchinson, 1. G. C. Pratt Lumber Co. v. Chicago, I. & L. R. Co. 29. Wichita v. Missouri P. R. Co. 35. Parks v. Cincinnati & M. Valley R. Co. 47. Railroad Commission of Kentucky v. Louisville & N. R. Co. 173. Central Yellow Pine Asso. v. Vicksburg, S. & P. R. Co. 193. Hewins v. New York, N. H. & H. R. Co. 221. Glade Coal Co. v. Baltimore & O. R. Co. 226. Paxton Tie Co. v. Detroit S. R. Co. 422. Chicago Live Stock Exchange v. Chicago G. W. R. Co. 428. Mershon S. P. & Co. v. Central R. Co. 456. Lehman Higginson Grocery Co. v. Atchison, T. & S. F. R. Co. 460 705 |