portion of the schedule rates as "rebates" or "drawbacks," and when made without reference to the rates charged other shippers, such contracts make no discrimination between parties. In the States where the common law rule is in force this 1 Bayles v. Kansas Pac. R. Co., 13 Colo. 181; s. c., 22 Pac. Rep. 341; 40 Am. & Eng. R. Cas. 42; 5L. R. A. 480; 2 Int. Com. Rep. 643. See also Indianapolis, D. & S. R. Co. v. Ervin, 118 Ill. 250; s. c., 8 N. E. Rep. 862; 27 Am. & Eng. R. Cas. 8; Indianapolis, D. & S. R. Co. v. Davis, 32 Ill. App. 67; Jacksonville S. E. R. Co. v. Rabbitt, 29 Ill. App. 288. Before the passage of the interstate commerce act defendant promised to pay plaintiffs a rebate of $6 a car on 170 car loads of lumber which plaintiffs promised to furnish for transportation. Plaintiffs delivered and defendants transported 73 car loads before and 97 after the act took effect. Defendants paid the rebate on the 73 cars. This suit was to recover it upon the remaining 97. The agreed case was that plaintiffs should have judgment unless their right to recover was "barred" by the interstate commerce act. Held, that plaintiffs could not recover; for the contract was void at common law as a discrimination, and, being void, plaintiffs never had any right under it which could be barred. Fitzgerald V. Grand Trunk R. Co., 63 Vt. 169; s. C., 22 Atl. Rep. 76; 49 Am. & Eng. R. Cas. 8. A railroad company may not make any unreasonable or unjust discriminations between its customers in freight charges, but the question whether such discrimination has been made is ordinarily one of fact. So, held, where a railroad company gave a rebate on coal in consideration that the favored party erect a dock on the company's land for the use of both parties. Root v. Long Island R. Co., 114 N. Y. 300; s. c., 21 N. E. Rep. 403; 40 Am. & Eng. R. Cas. 55; 4 L. R. A. 331; 23 N. Y. S. R. 226. When a person is engaged in the business of dealing in and furnishing railroad piles, and the railroad company over whose railroad he transports the same has a fixed rate or price for the transportation of such property, but it has favored customers for whom it will transport such property at a lower rate by first charging the full price, and, afterwards, when the transportation is completed, paying back a certain proportion thereof as a rebate, and the owner of the piles procures them, by an agreement with a favored customer, to be transported in the name of such favored customer, who afterwards receives the rebate, held, that the whole transaction is in violation of law and public policy, and the owner of the piles, who procured them to be so transported, cannot afterwards recover the amount of the rebate from the favored customer. Hawley v. Kansas & Texas Coal Co., 48 Kan. 593; s. C., 30 Pac. Rep. 14. The interstate commerce act is not violated by an agreement by a railroad with a stockyard company to pay a customer an annual sum, although a large portion of the stock received at its yards is shipped from, and reshipped to, other States, where such payment has no relation to the railway decision will be sustained. In Indiana this rule has followed. In the leading case of the Cleveland, Columbus, Cincinnati & Indianapolis Railway Company v. Closser, it was held that if a common carrier makes a special contract to repay part of the sum received from the shipper, he must perform his part of the contract, unless he overthrows the presumption of fairness and right by countervailing facts. It is not necessary for the shipper to prove that the rate charged and paid by him, under his contract, was excessive or unjust. His right to recover rests upon the contract providing for a drawback. This rule, somewhat modified, charges, which are uniform and no rebate is made thereon. Willoughby v. Chicago, J. R. & U. S. Co., 50 N. J. Eq. 656; s. C., 25 Atl. Rep. 277. See also the following interstate commerce cases: Interstate Commerce Commission V. B. & O. R. Co., 145 U. S. 263; In re Grand Trunk R. Co., 2 Int. Com. Rep. 496; s. C., 3 Int. Com. Com. 89; Shamberg v. Delaware, L. & W. R. Co., 3 Int. Com. Rep. 502; s. C., 4 Int. Com. Com. 630; Providence Coal Co. v. Providence & W. R. Co., 1 Int. Com. Rep. 363; s. C., 1 Int. Com. Com. 107. The D Co., which manufactured and sold spirits, etc., issued to the purchasers of its goods so-called "rebate vouchers," by which, the purpose of securing the continuous patronage" of the customer, it promised to pay him, in six months, a sum equal to five cents per gallon of the goods purchased by him; such voucher providing that it should be valid and payable only on condition" that the purchaser and his successors should, during such six months, have bought all his supply of such goods from the D Co. or certain persons named as its distributing for agents. The D Co., having been placed in the hands of a receiver, certain of these vouchers were presented to him for allowance, by persons who claimed to hold them as equitable assignees from the persons to whom they were issued. It appeared that the condition as to continued purchases from the D Co. had not been complied with. Held, that such vouchers did not create a present obligation to pay the rebate, subject to be defeated by a breach of the condition, but that such obligation would arise only on performance of the condition, and, accordingly, that even if the condition were held to be illegal, there would be no obligation without performance. Held, further, that such rebate vouchers were not illegal or against public policy. Olmstead v. Distilling & Cattle Feeding Co., 77 Fed. Rep. 265. 1 Cleveland. C., C. & I. R. Co. v. Closser, 126 Ind. 348; s. c., 26 N. E. Rep. 159; 45 Am. & Eng. R. Cas. 275. "The contract described is valid. It is not different, in any material respect, from the ordinary one in which the carrier stipulates directly to carry goods at a fixed rate, for the agree is upheld in Pennsylvania. In a recent case it was held that railroad companies have no right to make any undue discrimination or preference in their charges; and a charge made to one shipper higher than to another, for the same ment to repay does not of itself change the legal effect of the undertaking to such an extent as to transform it into an an illegal contract. It is, in contemplation of law, nothing more than an agreement to carry the grain at the compensation ultimately agreed upon, inasmuch as the provision binding the carrier to pay back part of the nominal compensation, simply fixes the amount of the actual compensation, although it does provide for a peculiar mode of payment. There is no element of moral or legal wrong in an agreement to repay part of the compensation received; to give an illegal character to such an agreement more must be shown than the mere fact that the parties stipulated for a rebate. In simply making a rebate, or in providing for a drawback, parties violate no law, and their contracts must stand. It cannot be presumed that fraud was intended, or practiced, nor can it be presumed that there was any wrongful combination to secure an undue advantage over other shippers; neither can it be presumed that in stipulating for a rebate the carrier intended to make, in favor of the particular shipper, a discrimination forbidden by law. It is by no means, every favor shown a particular shipper, although it may constitute, in some measure, a discrimination favorable to him and unfavorable to other shippers, that impresses upon a contract for the carriage of goods the seal of condemnation. The common law authorities (and by them this case is ruled) fully support the doctrine that a mere discrimination will not invalidate a contract; to have that effect other elements must enter into the contract; but when such elements are present in such force as to make the discrimination unjust or oppressive the contract will be illegal. It is not necessarily, or per se, a legal wrong for a carrier to give better rates to one who ships many car loads of grain than to one who ships a single car load or a single bushel. It is a matter of common knowledge, and, thorefore, one of which judicial notice is taken, that an increase in the volume of business is desirable and advantageous, and in the rivalry of business competition it is lawful to favor those whose business is great rather than those whose business is small or inconsiderable." Ibid., 351. See cases cited by the court: Nicholson v. Gt. Western Ry. Co., 7 C. B. (N. S.) 755; s. C., 1 Nev. & McN. R. W. Cas. 143; Garton v. Bristol, etc. R. W. Co., 1 B. & S. 112; Hozier v. Caledonian R. W. Co., 1 Nev. & McN. R. W. Cas. 27; Great Western Ry. Co. v. Sutton, L. R. 4 H. L. 226; Ransome v. Eastern, etc. R. W. Co., 1 C. B. (N S.) 437; Jones v. Easton, etc R. W. Co., 1 Nev. & McN. R. W. Cas. 72; Baxendale v. Railway Co., 5 C. B. (N. S.) 336; Bellsdyke, etc. Co. v. North British R. W. Co., 2 Nev. & McN. R. W. Cas. 105; Spofford v. Boston, etc. Railroad, 128 Mass. 326; service, under like circumstances, constitutes undue preferences and discrimination, and, consequently, renders the charge unreasonable. The equality, however, which is thus described, is not a strict and literal equality,-under all circumstances, however varying and different. It is rather an equality in the sense of freedom from unreasonable discrimination. The statute of 1883 prohibits only such discrimination as is undue or unreasonable, and the prohibited discrimination is farther limited by the consideration that it must be "for a like service, from the same place, upon like conditions and under similar circumstances." § 180. The Subject Continued. In other States it has been held that an agreement to make a rebate is void at common law, and in some States there are statutes making such contracts illegal and void. In Illinois it has recently been held that a contract between a railroad company and a shipper, that the latter shall pay the regular and established rates of freight, the same as all other shippers, and that the company shall pay back to him, by way of rebate, a certain portion of the freight so charged and paid, whereby such shipper will pay a less rate for transportation than that paid by others, and the public generally, for like services, Fitchburg R. R. Co. v. Gage, 12 395; S. 355; Hays v. Pennsylvania Co., 1 Hoover v. Pennsylvania R. Co., 156 Pa. St. 220; s. c.,27 Atl.Rep.282, See also Borda v. Philadelphia, etc. R. Co., 141 Pa. St. 484; s. c., 21 Atl. Rep. 665; Sharpless v. Mayor, 21 Pa. St. 147; Audenried v. Philadelphia, etc. R. Co., 68 Pa. St. 370; McDuffee v. Portland, etc. R. Co., 52 N. H. 430; New England Ex. Co. v. Maine Central R. Co., 57 Me. 188; Scofield v. Lake Shore, etc. R. Co., 43 Ohio St. 571; s. C., 3 N. E. Rep. 907; Union Pac. R. Co. v. Goodridge, 149 U. S. 680; s. c., 13 Sup. Ct. Rep. 970. under similar circumstances and for like distances, is void, as being against public policy at the common law, and in violation of the statute against unjust discriminations.1 In Iowa it has been held that where a railroad company makes a rebate in favor of one shipper, other shippers, who have paid the regular freight rates over the same line, may collect from the company the same proportionate amount of rebate. In the case of Cook & Wheeler v. The Chicago, Rock Island and Pacific Railway Company, the plaintiffs, who were shippers of cattle, were charged by the defendant from three to ten dollars per car load of cattle shipped over its road in excess of the charges made to other shippers for the same service and under the same conditions, the difference being allowed the favored shippers in the form of a secret rebate, which fact was concealed from the plaintiffs. It was held that at common law a common carrier is entitled to a reason 1 Indianapolis, D. & S. R. Co. v. Ervin, 118 Ill. 250; s. c., 8 N. E. Rep. 862; 27 Am. & Eng. R. Cas. 8. See also Indianapolis, D. & S. R. Co. v. Davis, 32 Ill. App. 67; Jacksonville S. E. R. Co. v. Rabbitt, 29 Ill. App. 288; Beadle v. Kansas City, etc. R. Co., 51 Kan. 248; s. c., 32 Pac. Rep. 910; Winsor Coal Co. v. Chicago, etc. R. Co., 52 Fed. Rep. 716; Swift v. Philadelphia, etc. R. Co., 58 Fed. Rep. 59; s. C., 64 Fed. Rep. 59; Gatton v. Chicago, etc. R. Co., 95 Iowa, 112; s. C., 63 N. W. Rep. 589; Atchison, etc. R. Co. v. Denver, etc. R. Co., 110 U. S. 667; s. c., 4 Sup. Ct. Rep. 185; Chicago, etc. R. Co. v. Osborne, 52 Fed. Rep. 912; Wabash R. Co. v. Illinois, 118 U. S. 557; s. C., 7 Sup. Ct. Rep. 4; Messenger v. Pennsylvania R. Co., 37 N. J. L. 531. Under the Railway Clauses Act 1845 and the Railway and Canal Traffic Act 1854. it constitutes an undue preference for a railway company, in order to compete with another line, to give certain advantages as to free cartage and rebate to shippers who have a direct communication by sidings with such other line, and refuse these advantages to others in the same trade not having such direct communication with the other railway. London & N. W. R. Co. v. Evershed, L. R. 3 App. Cas. 1029; s. c., 39 L. T. 306. An agreement between one trader and a railway, which secures to the trader rates unequal when compared with those of another trader having similar traffic, which is carried by the railway to the same place, is, prima facie, an undue preference, and the circumstances that the company have offered the same agreement as to rates and rebates to the competing trader will not necessarily justify the unequality. Rhymney Iron Co. v. Rhymney R. Co., 6 Ry. & C. T. Cas. 60. See also Harris v. Cockermouth & W. R. Co., 1 Ry. & C. T. Cas. 97 |