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his answer was no, he would spend it, or something like that; and then he suggested that he leave it to his children, and that idea suited uncle, and he wrote the will.”
We shall not stop to point out the conflict between this statement made by Erle Turner and the intimate and friendly relations as exhibited by his correspondence, continuing almost up to the time of the death of Tracy, or the conflict between the statements and the various parts of his testimony and his letters. We do not pause to do these things, because in our opinion the proof introduced by both parties beyond question establishes that Silas H. Turner entertained no such feeling towards his brother as the quoted testimony of Erle Turner implies. Thus the complainants' own proof showed that Thomas M. Turner was summoned to the bedside of his dying brother and there remained for a month and a half; that during that time he was in constant and close relation with the brother, without the slightest intimation of any want of confidence between them. On the contrary, Thomas M. Turner made repeated statements and declaration in the course of his testimony, to the effect that his brother referred to the will, and informed him that he expected him to administer the property, etc. That Tracy regarded Thomas M. Turner as honest is demonstrated by his whole course of conduct, and is illustrated by his allusions to Thomas M. Turner in the memorandum which he left for the information of his executors.
The receipt being binding, the only question remaining for consideration is whether any liability rests upon the estate of Tracy growing out of the investment in real estate referred to therein. From an inspection of the receipt it will be seen that that subject was thus described: Lots on Maryland avenue N. E. $1,800; and as we have also previously stated at the time of the giving of the receipt Tracy delivered to Thomas M. Turner a certificate, which we have heretofore reproduced, and which, as we have said, Turner subsequently turned over to his son Erle.
The evidence shows that the investment in question was represented by shares of stock of the Mutual Investment Company, which had acquired square 937 in the city of Washington. On September 3, 1888, Tracy subscribed to twentyfive shares of the stock of the par value of $150 per share, making a total liability of $3,750. He had paid assessments aggregating only $85 per share, when, on February 6, 1890, the land was sold at a profit of sixty dollars on each share of stock. It may, of course, be presumed that during the interval between the subscription to the stock and the winding up of the venture Tracy retained possession of the balance, upon which he was liable on the subscription over and above the sums actually paid on assessment calls, so as to be ready to respond to calls up to the par value of the stock. Twelve of the subscribed shares would represent an investment of $1,800, the exact amount stated in the receipt. The profit on the twelve shares amounted to $720. This profit with the principal of the investment aggregated, therefore, on February 6, 1890, $2,520. Tracy, however, received but a trifling amount in cash, the greater part of the sum due him on the settlement being paid in notes of the purchaser of square 937, secured by trust deed. When the notes were paid, as shown in a letter written by Tracy to T. M. Turner on May 7, 1892, heretofore reproduced in the margin, the investment had realized $2,600. On account of the refusal of Tracy in the spring of 1891 to pay over this sum to Thomas M. Turner, then living in Texas, unless he qualified as administrator of the estate, Tracy invested the amount in real estate notes, which were in Tracy's possession on May 7, 1892. Thomas M. Turner testified that prior to the spring of 1891 Tracy told him that the estate had realized from the investment in the Maryland avenue lots the sum of $2,750, although he does not claim to have taken issue with the statement in Tracy's letter that the amount was $2,600. The auditor, however, fixed the amount at $3,069.65, and held the estate of Tracy liable to account for that sum from February 6, 1890.
It appears from statements in the record that following the panic of 1893 payments of interest on this loan ceased and the security became impaired, and, from passages in letters of Tracy, it may be conjectured the loan was secured by a second mortgage and a sale was had under the first mortgage, which failed to realize more than sufficient to pay the primary incumbrance. It being, however, impossible from the record to determine with precision the ultimate fate of the investment in question, and as the sum originally realized therefrom is fixed with sufficient accuracy and has not been accounted for, we think the estate of Tracy should be held liable as of February 6, 1890, for the sum of two thousand five hundred and twenty dollars with legal interest. From this amount, however, there is to be deducted the one-fourth proportion of Erle H. Turner, as the sums admitted to have been paid to him by Tracy on account of this asset exceeded his proportion of the principal and interest. In other words, therefore, the estate of Tracy will be held accountable to complainants other than Erle H. Turner in equal proportions for the sum of eighteen hundred and ninety dollars with legal interest thereon from February 6, 1890.
The decree of the Court of Appeals is reversed and the cause is remanded with directions to reverse the decree of the Supreme Court of the District of Columbia and to remand the cause to that court with directions to enter a decree in conformity with this opinion. The costs in this court as well as in both the courts below are to be paid by the complainants and before distribution of the sum for which the estate of Tracy is held accountable.
MR. JUSTICE BROWN took no part in the consideration and decision of this case.
Statement of the Case.
TEXAS AND PACIFIC RAILWAY COMPANY v. MUGG.
ERROR TO THE COURT OF CIVIL APPEALS FOR THE SECOND SU
PREME JUDICIAL DISTRICT OF THE STATE OF TEXAS.
No. 233. Submitted April 18, 1906.-Decided May 14, 1906.
One obtaining from a common carrier transportation of goods from one
State to another at a rate specified in the bill of lading, less than the schedule rates published and approved and in force at the time, whether he does or does not know the rate is less than schedule rate, is not entitled to recover the goods, or damages for their detention, upon tendering payment of the amount specified in the bill of lading, or of any
sum less than the published charges. Whatever may be the rate agreed upon, the carrier's lien on the goods is,
by force of the Interstate Commerce Law, the amount fixed by the published schedule of rates and charges, and this lien can be discharged, and the consignee become entitled to the goods, only by payment or tender of such amount.
The railroad company, plaintiff in error in this record, appealed to the Court of Civil Appeals of the Second Supreme Judicial District of the State of Texas from a judgment which had been rendered in favor of Mugg and Dryden, defendants in error herein. The appellate court certified to the Supreme Court of Texas the question of the ability of the railroad company, upon a statement of facts which correctly set forth the controversy, and which was as follows:
The cause originated in the justice court, from which it was appealed to the County Court of Tarrant County, where a trial was had on the following statement of appellees' cause of action, to wit: 'Statement of plaintiff's cause of action. Damages in the sum of $140.18 as follows: By reason of defendant making and quoting to plaintiffs a rate of $1.25 per ton on two cars of coal and $1.50 per ton on one car of coal, in January and February, 1903, respectively, from Coal Hill, Ark., to Weatherford, Texas, on which rates so made and
quoted plaintiff relied in contracting said coal shipped and sold at prices based on said rates; whereas defendant assessed and collected of plaintiff freight at the rate of $2.75 per ton on said two cars, and $2.85 per ton on said one car, which said freight rate plaintiff was forced to pay and did pay under protest in order to obtain said coal and deliver the same in compliance with sales previously made. That plaintiff's loss and damage in the sum aforesaid were occasioned by defendant's negligence in making and quoting to plaintiff the said rates, on which rate quoted defendant knew plaintiffs relied and based their sales of the said three cars of coal shipped and sold thereafter, and then forcing plaintiffs to pay a greater rate, amounting in the aggregate to the sum of $140.18, on said three cars of coal, thereby causing plaintiffs' loss and damage in the said sum.'
"To this pleading the appellant answered by general demurrer and general denial, and especially denied that it ever entered into any contract for the shipment of coal for appellees from Coal Hill, Ark., to Weatherford, Texas, at the rate alleged in appellees' statement; and further that if it ever quoted any such rate to appellees such quotation was a violation of the Interstate Commerce Act and was a lower rate than the interstate rate in effect at the time shipment was made, which had been duly published, printed, and posted in its depot and stations as required by the terms of the act; and further, that it collected from appellees the exact rate prescribed for such commodity under such act, and that such contract, if any was made, was in violation of law and void. Upon a trial without a jury judgment was rendered for the appellees for the amount sued for and all costs of suit.
“It is agreed by the parties that the rate charged and collected on the shipments of coal in controversy from Coal Hill, Ark., to Weatherford, Texas, as shown in appellees' statement of cause of action, was the regular rate in effect at the time the shipments were made, as shown by the printed and published schedules of the Texas and Pacific Railway Company