CARSON LUMBER CO. v. ST. LOUIS & S. F. R. CO., 209 F. 191

VAN VALKENBURGH, District Judge (after stating the facts as above).

At the threshold of the case we encounter the'following disclosure made by the record: “Comes now the Carson Lumber Company, plaintiff in the above-entitled action, and hereby enters satisfaction of judgment in the above-entitled case in accordance with the fifth paragraph of the agreed statement of facts covering rebate on eight interstate shipments amounting to $386.61, for which judgment was rendered in its favor on June 1, 1912.” And the suggestion is made that plaintiff in error is estopped to prosecute this writ to the reversal of the decree below with respect to the refund on intrastate shipments.

It is undoubtedly the general rule that a party who obtains the benefit of an order or judgment, and accepts the benefit or receives the advantage, shall be afterwards precluded from asking that the order or judgment be reviewed. Nevertheless, this rule is not absolute where the judgment or decree is not so indivisible that it must be sustained or reversed as a whole. It has no application to cases where the appellant is shown to be so absolutely entitled to the sum collected upon the judgment that the reversal of it will not affect his right to the amount accepted (Reynes v. Dumont, 130 U. S. 354-394, 9 Sup.

Ct. 486, 32 L. Ed. 934), especially where there is'not present conduct which is inconsistent with the claim of a right to reverse the judgment or decree, which it is sought to bring into review (Embry v. Palmer, 107 U. S. 3-8, 2 Sup. Ct. 25, 27 L. Ed. 346; Merriam v. Haas, 3 Wall. 687, 18 L. Ed. 29; United States v. Dashiel, 3 Wall. 688, 18 L. Ed. 268). The defendant in error did not contest the refund claimed on interstate shipments. Its liability therefor' was recognized in the agreed statement of facts. The amount awarded, paid, and accepted constitutes no part of what is in controversy.

The serious difficulty which confronts plaintiff in error is that it seeks strict enforcement of an alleged contract whose conditions it has itself obviously failed to perform. As was said by the trial judge: "A milling in’ transit rate is an entirety, and must be accepted and carried out in its entirety, or not at all.” It is applicable only when all its substantial terms and provisions are observed. The railroad, in tendering such a privilege, undoubtedly relies upon the revenues which it expects will accrue from such a traffic arrangement.

These depend upon the terms and conditions of the tariffs then in force. An inspection of those in effect when these inbound shipments moved, make it apparent that, to entitle a shipper to refund, he must not only pay the existing local tariff rates upon inbound shipments, but must thereafter bill out under prescribed outbound rates. If the shipper pays less than the outbound rate in force when his inbound shipment was made, he has not complied with the express terms of the tariff, nor has the carrier received the full rate which induced it to concede the milling in transit privilege.

It is agreed that the outbound rates named in tariff 904 Series and 856—B, I. C. C. Series 5130, were in force when these inbound shipments were made. It is also conceded that plaintiff in error did not pay those rates, but did pay the lower rates established by the Oklahoma Corporation Commission. Therefore it has not complied, either in letter, or in spirit, with the terms and conditions of the tariffs upon which its cause of action is based.

We have no occasion to consider the legal aspect of a case where the carrier has arbitrarily changed its outbound rate after the inbound shipments have been made and the shipper has tendered the former outbound rate and demanded the refund. Such a situation is not here presented. It would appear that the railroad company was obliged to put in force a new and lower rate as to intrastate shipments as ordered by the Corporation Commission of the new state, of Oklahoma. It had been compelled to cancel and had canceled its former tariffs applicable to such shipments.

It would have been Unlawful for it to charge or receive rates other than those established—not only so, but plaintiff in error voluntarily paid the lower rate, and in so doing failed to bring itself within the terms of the former milling in transit privilege. Within the confines of its own jurisdiction the action of the Oklahoma Commission was the exercise of paramount rate-making power, and, as such, superseded prior arrangements as to rates upon which it operated.

Our conclusion is that plaintiff in error did not make its outbound shipments upon such terms and conditions as entitled it to the benefit of the previously existing milling in transit privilege. Moreover, the tariffs in which that privilege was tendered were no longer in effect. The allowance of this claim would operate as a departure from rates and schedules filed, published and effective at the time the outbound shipments were made. It would pave the way for the return of those special concessions, discriminations, and advantages which it is the policy of the law to discountenance and prevent. New Haven R. R.

Co. v. Interstate Commerce, Commission, 200 U. S. 361, 26 Sup. Ct. 272, 50 L. Ed. 515; Armour Packing Co. v. United States, 209 U. S. 56, 28 Sup. Ct. 428, 52 L. Ed. 681. For the reasons stated the judgment below must be affirmed.