KNUDSEN FERGUSON FRUIT CO. v. CHICAGO, ST. P., M. & O. RY. CO., 149 F. 973

DANDIS, District Judge, having stated the case as above, delivered the opinion of the court.

The plaintiff’s theory of defendant’s liability is that peaches, being-of a perishable nature, cannot be transported in safety the distance between South Haven and Duluth- (some 800 miles) without refrigeration in transit; that the law imposes upon the carrier the duty to carry* safely; that therefore, when the carrier publishes a rate for the transportation of such perishable commodity, the obligation to refrigerate rests upon the carrier as an inherent essential to safe transportation, the performance of which obligation, as contended by plaintiff, gives the carrier no right to impose -an additional charge therefor.

This would be an interesting question, were it before us for examination; but in our view of the case, the plaintiff having paid the money with full knowledge of all the facts and after the goods had been turned over to it by the defendant company, we are precluded from a consideration of whether or not the carrier has a right to impose a charge for icing service in addition to the published rate for transportation.

The rule is that a party may not recover back the amount of an unlawful demand, when he-has voluntarify paid the same with full knowledge of all the facts, unless the payment was made “to emancipate the person or property from an actual and existing duress imposed by the party to whom the money is paid.” Brumagin v. Tillinghast, 18 Cal. 265, 79 Am. Dec. 176; Baltimore v. Lefferman, 4 Gill (Md.) 425, 45 Am. Dec. 145; Lamborn v. Commissioners, 97 U. S. 181, 24 L. Ed. 926.

On the other hand, the action tp recover back may be maintained “if the payment is caused, on the one part, by an illegal demand, and made, on the other, reluctantly and * * * without being able to regain possession of the property except by submitting to the payment.” Maxwell v. Griswold, 10 How. (U. S.) 242, 13 L. Ed. 405.

In the pending cause, as seen above, the carrier’s published tariff schedules notified the shipper that for furnishing ice in transit a 'charge in addition to the published freight rate would be made, and the shipping order of the consignor (who, for this purpose, was the agent of the plaintiff, consignee) specifically included the item for refrigeration by name and amount. The shipment was delivered to the plaintiff September 12th, and 10 days thereafter the defendant presented its bill, which,- without even an expression of dissatisfaction, the - plaintiff paid. Obviously, there was no duress of goods.

The payment having been deliberately made with full knowledge of all the facts, and after the shipment came into the possession of the consignee, the legality of the icing charge is not before us for determination, and the judgment is affirmed.