Wheeling & Lake Erie Ry. Co. v. Standard Envelope Mfg. Co. , 2 F. Supp. 637 ( 1932 )

JONES, District Judge.

In this ease the parties entered a written stipulation waiving a trial by jury. The ease was submitted upon a revised stipulation of facts and briefs. Upon due consideration of the pleadings, stipulation of facts and briefs filed by the parties, I find that the wrong rate was applied for the shipment and route designated by the shipper, and my conclusion is that the plaintiff is entitled to judgment as prayed.

If llio initial carrier's agent made a mistake or carelessly permitted the wrong rate to he stated in the bills of lading for the route designated by the shipper, the plaintiff company is not bound thereby, but it is required to collect the established and lawful rate. It is not a matter upon which the carrier’s agent and the shipper can agree, nor about which they can make a binding- mistake. If it were otherwise, the lawful and established rates would be subject to illegal variance. The sum of the established local rates is the rate to be charged where no> joint through rate is in effect. The shipper selects the route, and the established rate for the roule must be applied. The failure of the carrier's agent to notify the shipper that a joint through rate is less than the rate for the through route selected by the shipper cannot prevent the exaction of the lawful and established rate.

The material admissions in the pleadings and the revised stipulation of facts will be adopted as findings, and the conclusion of the court will be as above stated.