#### The Pennsylvania Railroad Company, Respondent, *v.*James L. Titus, Doing Business Under the Name and Style of Titus Brothers, Appellant.

(Supreme Court, Appellate Term, First Department,

December, 1912.)

Carriers — consignee’s liability for freight charges — delay in payment no bar to recovery.

Where goods were delivered to defendant who. sold them and, after deducting his commissions and expenses, remitted the proceeds to the consignor, defendant is liable for the carrier’s freight charges at the rate fixed by law.

Where the carrier discovers that, through mistake, it has asked and received less than the sum it was permitted and required by *348law to ask, it has the right to demand payment of the amount it should have demanded; and a delay of fifteen months is no bar to a recovery of its lawful charges.

Appeal by the defendant from a judgment of the Municpal Court of the city of ¡New York, borough of Manhattan, first district, entered in favor of the plaintiff.

Truax & Watson (George J. McDonnell, of counsel), for appellant.

Burlingham, Montgomery & Beecher (Ray Rood Allen, of counsel), for respondent.

Seabury, J.

This case arose upon a submission of controversy to the Municipal Court, which rendered a judgment in favor of the plaintiff for three dollars and forty-five cents, from which the defendant appeals. The action was brought to recover this sum for additional freight charges under a consignment of peaches shipped by one Franklin, of Adairsville, Ga., to the defendant at the city of ¡New York. The peaches were shipped on or about June 27, 1907, at which time Franklin was concededly their owner. The goods were shipped to the defendant for sale upon commission, and upon the agreement that the defendant should sell and dispose of the same for and on account of Franklin and as his agent. The goods were delivered to the defendant, who sold them, and after deducting his commissions and expenses remitted the proceeds to Franklin, the consignor. The peaches were shipped by Franklin and delivered at Adairsville, Ga., to the ¡Nashville, Chattanooga and St. Louis Railway Company, which company issued its bill of lading for them. The peaches were carried by that company to Philadelphia, and were then delivered to the plaintiff, which transported them to ¡New York city and delivered them to the defendant about July 1, 1907. The defendant paid the plaintiff the sum demanded for freight charges, amounting to $488. These charges were assessed upon the basis of eighty and two-tenths cents per 100 pounds, which was incorrect, the correct rate being eighty-one cents per 100 *349pounds, which, computed at the latter rate, would amount to the sum of $491.45. The error made by the plaintiff in its charges was not discovered by it until fifteen months after the delivery of the peaches, and after the defendant had paid the freight charges demanded, sold the peaches and transmitted the proceeds to the consignor. The additional charge which the plaintiff seeks to recover in this action is the difference between $491.45, the amount which should have been charged, and the sum of $488, which was actually demanded and paid. It is significant, though not decisive of the present case, that the bill of lading contained the following clause: “ Owner or consignee shall pay freight, and average, if any, and all other charges accruing on said property, before delivery, and according to weights as ascertained by any carrier hereunder; and if, upon inspection, it is ascertained that the articles shipped are not those described in this bill of lading, the freight charges must be paid upon the articles actually shipped, and at the tariff rates and under the rules provided for by published classification.”

Quite apart from the clause contained in the bill of lading, we think that the rule of law governing such a case as this is, that the consignee who receives the goods is presumptively their owner, and the carrier may, in the absence of notice to the contrary, so treat the consignee and hold him for the freight charges on the goods. 2 Hutch. Carriers (3d ed.), §§ 807, 809. In the present case it is asserted that the consignee was merely the agent of the consignor, but it is undisputed’that this fact was never made known to the carrier. In such a case the rule that the consignee cannot be held liable is not available to the consignee; “ But in order that the foregoing rule that the consignee, when acting as agent for the owner, cannot be held liable for the freight, may be available to such consignee when the demand is made upon him, it must appear that the fact of such agency was in some manner disclosed to the carrier.” 2 Hutch. Carriers (3d ed.), § 811. When the consignee accepts the goods from the carrier, and thereby deprives the carrier of their possession and of his lien upon it for his freight, I do not think that the consignee should be permitted to claim that he has *350no interest in the property, and compel the carrier to look to others for payment of his freight. Sheets v. Wilgus, 56 Barb. 662. The rate which the carrier was permitted and required to charge was fixed by law, and under section 2 of the Interstate Commerce Act, which is modeled on the “ equality clause ” of the English Railway Act (Texas, etc., R. Co. v. Interstate Commerce Commission, 162 U. S. 197), equality of rates between shippers is enjoined. If, through mistake, the plaintiff, as carrier, asked and received less than by law it was required to ask, it had the right, upon discovery of its mistake, to demand payment of the amount which, in the first instance, it should have demanded. The mere fact that the carrier delayed fifteen months before bringing an action to recover this amount does not bar its claim. It is not suggested that the present action is barred by any Statute of Limitations, and, provided the action is commenced within the time allowed by statute, it makes no difference how long its commencement was delayed.

Güt and Burnt, JJ., concur.

Judgment affirmed, with costs.