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.

VOL. CCI-16

Statement of the Case.

202 U.S.

TEXAS AND PACIFIC RAILWAY COMPANY v. MUGG.

ERROR TO THE COURT OF CIVIL APPEALS FOR THE SECOND SUPREME 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 liability 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

on file with the Interstate Commerce Commission, and posted in the stations of said railway company, as required by the Interstate Commerce Act. There is no assignment challenging the sufficiency of the evidence to support the material allegations of appellees' pleadings.

The Supreme Court of Texas having answered that the railroad company was liable "for damages occasioned by the misrepresentation of the rate of freight as shown by the statement of facts," 98 Texas, 352, the Court of Civil Appeals affirmed the judgment against the railroad company. Thereupon this writ of error was prosecuted.

Mr. John F. Dillon, Mr. Winslow S. Pierce, Mr. David D. Duncan and Mr. Thomas J. Freeman, for plaintiff in error:

There was no appearance for defendants in error.

MR. JUSTICE WHITE, after making the foregoing statement, delivered the opinion of the court.

This case is within the principle of and is ruled by the decision in Railroad Co. v. Hefley, 158 U. S. 98. Upon the authority of that case the Supreme Court of Alabama denied the liability of a railroad company in a case of similar character to that under review. Southern Ry. Co. v. Harrison, 119 Alabama, 539. The opinion of Chief Justice Brickell, so aptly reviewed and declared the effect of the decision in the Hefley case that we adopt the same in disposing of the present controversy. The Alabama court said:

"In Gulf &c. Railroad Co. v. Hefley, 158 U. S. 98, the plaintiff sued to recover damages for the refusal by the carrier to deliver goods consigned to him, after tender of payment of the stipulated charges named in the bill of lading. The goods, a lot of furniture, had been received by the carrier at St. Louis, Missouri, for transportation to Cameron, Texas, at a stipulated rate, specified in the bill of lading, of 69 cents per