The contract between the parties was evidenced by certain letters that passed, and they were filed with and made a part of the record and considered by the trial judge. It appears that, prior to June 4, 1908, the regular schedule tariff on goods shipped between the points of Big Hatchie, Tennessee, and Henderson, Kentucky, was ten cents per hundred pounds. On June 4, 1908, a schedule was adopted making a reduction of two cents per hundred pounds on all goods reshipped over its lines, and this traffic arrangement remained in effect until July 1, 1909, when a tariff rate of ten cents per hundred was posted. All of the logs were shipped from Big Hatchie, Tennessee, to Henderson between June 26th, 1907, and February 13, 1908, but the manufactured product was not reshipped from Henderson over the defendant company's lines for some time thereafter, and when a portion of it, at least, was reshipped, the tariff of June 4, 1908, was in effect.

It is the contention of appellees' counsel that, inasmuch as the tariff of June 4, 1908, gave a rate of eight cents on all raw material shipped from Big Hatchie, Tennessee, into Henderson, where the manufactured product was shipped out again over the defendant's road, the plaintiff company is entitled to the benefit of that. schedule on the raw material shipped from Big Hatchie into Henderson by it under the old schedule of ten cents per hundred pounds. This is the view the lower court took of the matter and, accordingly, he entered a judgment for $250, this being the two cents per hundred on the 1,253,007 pounds of manufactured products shown to have been shipped from Henderson over the defendant's road. The railroad company appeals.

This was an interstate commerce shipment and the rights of the parties must be determined by the Federal Statute regulating such shipments. At the time all of the logs were shipped, the regular schedule rate from Big Hatchie, Tennessee, to Henderson, Kentucky, was ten cents per hundred pounds. Plaintiff shipped 1,712,100 pounds of logs in the rough, and was required to pay to the railroad $1,712 freight thereon, this being the exact tariff schedule. In the petition the assignees sought to recover two cents per hundred pounds rebate on this freight, amounting to $342. In other words, the plaintiff was seeking in this suit to have enforced an agreement which was made with the railroad company by which the latter was to refund to it two cents per hun

dred pounds on this shipment. To hold that it might do so, or should be required to do so, would be in effect to require the railroad to give to the plaintiffs a preferential rate, which is directly in conflict with the provisions of the Interstate Commerce law. Section 6, as amended by the act of June 18, 1910, provides that:

"No carrier, unless otherwise provided by this act, shall engage or participate in the transportation of passengers or property, as defined in this act, unless the rates, fares and charges upon which the same are transported by said carrier have been filed and published in accordance with the provisions of this act; nor shall any carrier charge or demand or collect or receive a greater or less or different compensation for such transportation of passengeres or property, or for any service in connection therewith, between the points named in such tariffs than the rates, fares, and charges which are specified in the tariffs filed and in effect at the time; nor shall any carrier refund or remit in any manner or by any device any portion of the rates, fares, or charges so specified, nor extend to any shipper or person any privileges or facilities in the transportation of passengers or property, except such as are specified in such tariffs: Provided, That wherever the word 'carrier' appears in this act it shall be held to mean 'common carrier.'"

Various cases have arisen where there has been an attempt to evade the provisions of this act, and the court has uniformly held that the carrier, in the shipment of freight, must charge the tariff rate, neither more nor less, and that, where such rate had been charged, even though an arrangement had been entered into with the shipper by which he was given to understand that he was to have a cheaper rate, such agreement would not be enforced.

In Chesapeake & Ohio Railroad Co. v. Maysville Brick Co., 132 Ky., 643, the questions involved in this case were fully considered. The Maysville Brick Co. had, in that case, a contract with the railroad for the transportation of brick from Maysville to Frankfort, Kentucky, at four cents per hundred pounds. The tariff rate was seven. It was agreed between the shipper and the railroad that the consignee was to pay the freight and deduct it from the price of the brick. When the brick were delivered in Frankfort the consignee was required to and did pay the tariff rate of seven cents per hundred, and deducted this sum from the purchase price.

The Maysville Brick Co., relying upon its contract, sought to recover of the railroad the difference between the contract price and the tariff or schedule price, towit, three cents per hundred. The lower court decided for plaintiff, but upon appeal here it was held that the contract by which it was agreed that the plaintiff was to have a rate of four cents per hundred was illegal and void and in direct violation of sections 214 of the Constitution and 817 of the Kentucky Statutes. No recovery was allowed, because a common carrier is, by the provisions of the Constitution and Statute, supra, prohibited, under heavy penalty, from making a preferential agreement for the shipment of goods, and the contract upon which it was based was held void because against public policy, and the court would not enforce a contract made in open violation of a statute.

Section 2 of the Interstate Commerce Act is, in effect, section 817 of our statute, and the Federal courts have likewise held that contracts made in violation of the provisions of the Interstate Commerce Act as to rates will not be enforced, because against public policy, and this whether the shipper knew that the agreement into which he was entering was in violation of the law or not. Savannah, &c., Ry. Co. v. Bundick, 94 Ga., 775; Hancock v. Railroad Co., 145 U. S., 416; Southern Ry. Co. v. Harrison, 119 Ala., 539; Texas & Pacific Ry. Co. v. Mugg, 202 U. S., 242. In this latter case it was held that, where a contract had been entered into with a carrier for the transportation of goods from one State to another at a rate less than that provided for in the schedule and approved and in force at the time, whether he knew it to be less or not, he was not entitled to recover the goods, or damages for their detention, until he had paid the schedule charges. The opinion in all of these cases is bottomed upon the idea that a contract made in violation of a statute is void, and that where a litigant can not establish his claim except by relying upon an illegal contract, he is not entitled to recover.

In the case at bar it is not entirely clear whether the shipper knew that the arrangement which he made with the company was for a freight rate less than the tariff rate or not. It is probable that he did, but whether he did or not is wholly immaterial. The fact remained that he was procuring a preferential rate in direct violation of the statute. This statute was passed for the purpose

of preventing preferences. Practical experience had demonstrated that unfair competition was frequently brought about by means of preferential freight rates, and this practice was not infrequently carried to such an extent as to give to the favored individual or corporation a practical monopoly in the line of his business. Competition was destroyed. The less fortunate saw his business rendered unprofitable, if not ruined, by his favored rival. To remedy this evil the statute was passed. It was the purpose of the law-making power to put all shippers upon absolute equality. This could only be done by denying to the carrier the right to charge to any one a less rate than was charged to another. The enforcement of this law has had a most salutary effect upon trade, and while isolated instances will necessarily arise where its enforcement apparently works a hardship, in the main it is productive of much good. Under the existing law no private contract for the shipment of goods can be made so far as rates are concerned. These are fixed, and apply alike to all. The only question open is, to determine the classification of the freight when it is offered for shipment. The company must charge, and is entitled to receive, the tariff rate, and when it was made to appear that the tariff rate in force when this shipment was made was ten cents per hundred pounds, and that this was the amount which the railroad company had received, and that plaintiff was relying upon a special arrangement, by which it was to have its freight transported for a rate less than the tariff rate, the judgment should have been for the defendant.

Judgment reversed and cause remanded, with instructions for further proceedings consistent herewith.

McKnight v. Broadway Investment Company.

(Decided March 16, 1912.)

Appeal from Jefferson Circuit Court
(Chancery Branch, Second Division).

1. Contracts-Specific Performance-Mutual Agreement. It is elementary that specific performance of a contract will not be decreed except upon a completed contract. "There can be no contract unless the minds of the parties have mutually agreed, and specific performance will be denied when this requisite is lacking.

2.

3.

4.

Equity requires a clear, mutual understanding and a positive assent on the part of each party."

Courts-Compelling Specific Performance. To authorize a court of equity to exercise its jurisdiction compelling the specific enforcement of a contract it must be reasonably certain as to its subject matter, its stipulations, its purposes, its parties and the circumstances under which it was made.

Specific Performance.-A specific performance cannot be decreed of a contract to give or renew a loan which does not specify the terms for which it is to be given or renewed.

Leasing Real Estate-Obligation of Contracting Parties. It is not enough that there should be a writing signed by the grantor merely stating that he proposed to lease certain premises upon terms to be mutually agreed upon, but the memorandum relied upon must contain the terms, that is, it must furnish the evidence of the terms of the lease, the time it is to begin, the conditions upon which it is to be executed, the various provisions setting forth the respective rights, duties and obligation of the contracting parties. These things are of the very essence of the contract and they must necessarily be reduced to writing in order to take the case out of the statute.

KOHN, BINGHAM, SLOSS & SPINDLE for appellant.

TRABUE, DOOLAN & COX for appellee.

OPINION OF THE COURT BY JUDGE LASSING-Reversing.

W. H. McKnight is the owner of a lot 122 by 170 feet on the northwest corner of Fourth and Broadway, in Louisville, Kentucky. The Broadway Investment Company is a corporation engaged in dealing in real estate in the city of Louisville. George H. Fisher & Co. are real estate agents in Louisville. Sometime in the midsummer of 1909 W. H. McKnight was approached by a representative of George H. Fisher & Co. and requested to put a price upon his real estate on Fourth and Broadway. He declined to do so. Shortly thereafter the same agent again inquired of him to know if he would lease said property, and he expressed a willingness to do so if satisfactory arrangements as to rental and terms could be made. Through the efforts of George H. Fisher & Co. negotiations were started between W. H. McKnight and the Broadway Investment Co., looking to the leasing of the former's property by the latter.

In the course of their dickering, McKnight wrote and delivered to Fisher & Co. the following proposition: