than an agreement to carry the grain at the compensation ultimately agreed upon, inasmuch as the provision binding the carrier to pay back part of the nominal compensation simply fixes the amount of the actual compensation, although it does provide for a peculiar mode of payment. There is no element of moral or legal wrong in an agreement to repay part of the compensation received. To give an illegal character to such an agreement, more must be shown than the mere fact that the parties stipulated for a rebate. In simply making a rebate, or in providing for a drawback, parties violate no law, and their contract must stand. It cannot be presumed that fraud was intended or practiced, nor can it be presumed that there was any wrongful combination to secure an undue advantage over other shippers; neither can it be presumed that in stipulating for a rebate the carrier intended to make, in favor of the particular shipper, a discrimination forbidden by law. It is by no means every favor shown a particular shipper, although it may constitute, in some measure, a discrimination favorable to him and unfavorable to other shippers, that impresses upon a contract for the carriage of goods. the seal of condemnation. The common-law authorities (and by them this case is ruled) fully support the doctrine that a mere discrimination will not invalidate a contract; to have that effect, other elements must enter into the contract; but when such elements are present in such force as to make the discrimination unjust or oppressive, the contract will be illegal. It is not necessarily or per se a legal wrong for a carrier to give better rates to one who ships many car-loads of grain, than to one who ships a single car-load or a single bushel. It is a matter of common knowledge, and therefore one of which judicial notice is taken, that an increase in the volume of business is desirable and advantageous; and in the rivalry of business competition it is lawful to favor those whose business is great, rather than those whose business is small or inconsiderable.

In the case of Nicholson v. Great Western R'y Co., 7 Com. B., N. S., 755, 1 Nev. & McN. R'y etc. Cas. 143, Erle, C. J., said: "I take the free power of making contracts to be essential for making commercial profit. Railway companies have that power as free as any merchants, subject only (as to this court) to the duty of acting impartially, without respect of persons; and this duty is performed when the offer of contract is made to all who wish to adopt it. Large contracts may be beyond

the means of small capitalists; contracts for long distances may be beyond the needs of those whose traffic is confined to a home district; but the power of the railway company to contract is not restricted by these considerations."

It is obvious that whether the common carrier acts impartially or not depends upon the circumstances of the particular case, for regard must be had to such circumstances as quantity, distance, and kindred considerations. The hinge of the question is not found in the single fact of discrimination, for discrimination without partiality is inoffensive, and partiality exists only in cases where advantages are equal, and one party is unduly favored at the expense of another who stands upon an equal footing. Many English cases support this general doctrine: Garton v. Bristol etc. R'y Co., 1 Best & S. 112; Hozier v. Caledonian R'y Co., 1 Nev. & McN. R'y Cas. 27; Great Western R'y Co. v. Sutton, L. R. 4 H. L. 226; Ransome v. Eastern etc. R'y Co., 1 Com. B., N. S., 437; Jones v. Eastern etc. R'y Co., 1 Nev. & McN. R'y Cas. 45; Oxlade v. North Eastern R'y Co., 1 Nev. & McN. R'y Cas. 72; Baxendale v. Railway Co., 5 Com. B., N. S., 336; Bellsdyke etc. Co. v. North British R'y Co., 2 Nev. & McN. R'y Cas. 105.

The current of judicial opinion in America flows in the general channel marked out and opened by the courts of England: Bayles v. Kansas etc. R'y Co., 13 Col. 181; Spofford v. Boston etc. R. R. Co., 128 Mass. 326; Fitchburg R. R. Co. v. Gage, 12 Gray, 393; Johnson v. Pensacola etc. R. R. Co., 16 Fla. 623; 26 Am. Rep. 731; Ragan v. Aiken, 9 Lea, 609; 42 Am. Rep. 684; McDuffee v. Portland etc. R. R. Co., 52 N. H. 430; 13 Am. Rep. 72; Hersh v. Northern Central R'y Co., 74 Pa. St. 181; Christie v. Missouri Pacific R'y Co., 94 Mo. 453; Chicago etc. R. R. Co. v. People, 67 Ill. 11; 16 Am. Rep. 599; Toledo etc. R'y Co. v. Elliott, 76 Ill. 67; Erie and Pacific Despatch v. Cecil, 112 Ill. 185; Root v. Long Island R. R. Co., 114 N.Y. 300; Kilmer v. New York etc. R. R. Co., 100 N. Y. 395; 53 Am. Rep. 194; Stewart v. Lehigh etc. R. R. Co., 38 N. J. L. 505; Union Pacific R'y Co. v. United States, 117 U. S. 355; Hays v. Pennsylvania Co., 12 Fed. Rep. 309; Interstate Commerce Commission v. Baltimore etc. R. R. Co., 8 Railway and Corporation Law Journal, 343.

The cases of State v. Cincinnati etc. R'y Co., 47 Ohio St. 130, Scofield v. Lake Shore etc. R'y Co., 43 Ohio St. 571, and Messenger v. Pennsylvania R. R. Co., 36 N. J. L. 407, 13 Am. Rep. 457, are not entirely out of line with the decisions to

which we have referred, although fragmentary expressions found in some of the opinions seemingly pass the lines of principle. It is very doubtful whether the reasoning in the case of Burlington etc. R'y Co. v. Northwestern Fuel Co., 31 Fed. Rep. 652, can be regarded as sound, or be made to harmonize with the reasoning in the much more carefully considered case of Interstate Commerce Commission v. Baltimore etc. R. R. Co., 8 Railway and Corporation Law Journal, 343; but, granting the reasoning to be unimpeachable and the conclusion sound, the decision cannot be regarded as of controlling influence in such a case as the one at our bar. In the case upon which we are commenting, a recovery was adjudged on the ground that the difference in the rate charged shippers of large quantities of goods and that charged shippers of small quantities was so gross as to be against public policy. We have no such question here. So far as concerns the question of the right to discriminate between shippers, we concur with the general doctrine of the case cited, for we have no doubt that an unjust, unfair, or oppressive discrimination is prohibited by the soundest considerations of public policy; but, as we have already suggested, we do not believe that from the sole fact that there is a discrimination a conclusion can be inferred which invalidates the special contract between the carrier and the shipper, for to warrant such a conclusion, without defying principle, another element must be added to the premises, and that element is this: the discrimination is unjust or oppressive.

In the later case of Stewart v. Lehigh etc. R. R. Co., 38 N. J. L. 505, the decision in Messenger v. Pennsylvania R. R. Co., 36 N. J. L. 407, 13 Am. Rep. 457, is explained, and it was said: "The contract held invalid in the Messenger case, above cited, was indeed one inuring to the benefit of the individual and against the corporation; but its terms were such that it could not possibly be effectuated without giving the plaintiff a preference over the public; it was, in effect, that whatever rate should be charged against any one else twenty per centum less should be charged to the plaintiff. Plainly, such a contract was not consistent with the company's duty of impartiality. As soon as the general rates were reduced to the standard of the plaintiff's, he was entitled to have his rates reduced twenty per centum lower." It is evident from this that the courts of New Jersey did not hold, nor mean to hold, that a contract giving a special rate and providing for a

drawback was in itself illegal and void. We do not regard the decision in the case of Indianapolis etc. R. R. Co. v. Ervin, 27 Am. & Eng. R. R. Cas. 8, as relevant to the point under immediate consideration, and for this conclusion we assign these reasons: The decision is founded upon an express statute, and proceeds upon the assumption that the discrimination was an unjust one. Whether that case does or does not overrule the earlier cases decided by the same court we need not inquire, for, however this may be, the reasoning in the earlier cases harmonizes with the doctrine of the standard authorities, and commands our assent. We believe those cases are right in asserting that a preferential rate, although made effective by a provision for a drawback, does not, of its own force, destroy the contract; but in assenting to the conclusion stated, we do not mean to be understood as asserting that where a preferential rate is given, the fact that a drawback is provided for may not exert an important influence upon the decision of the question whether the discrimination is or is not an unjust one; on the contrary, we mean to do no more than affirm that the single fact will not justify a judicial declaration of illegality. Whether it may be considered, in connection with other facts, as tending to show an unjust discrimination is different question from the one before us.

The conclusion that common carriers may, within the limits of fairness and impartiality, consult their own interests underlies the decisions which we have referred to as correct exponents of the law; and this general conclusion is affirmed in our own case of Louisville etc. R'y Co. v. Flanagan, 113 Ind. 488; 3 Am. St. Rep. 674; and from the doctrine of that case we see no reason for departing. This principle has been given force in many other cases: Chicago etc. R. R. Co. v. Iowa, 94 U. S. 155; Easton v. Houston etc. R. R. Co., 32 Fed. Rep. 897; Glasgow Steamship v. Mackinnon, 27 Am. & Eng. R. R. Cas. 1; Mogul Steamship Co. v. McGregor, 39 Alb. L. J. 50.

The second paragraph of the complaint alleges that the defendant is, and long has been, a common carrier of goods, and that its custom, of long standing, is to make contracts for carrying grain from Indianapolis to the Eastern cities; that the plaintiffs have long been engaged in the business of buying, selling, and shipping grain; that on the first day of November, 1884, the plaintiffs, under the firm name of Closser & Co., entered into a contract with the defendant whereby it undertook to transport grain from a station on its road, known

as Union City, to the city of New York; that at the time this contract was made "there was no open and established rate of freight charges for carrying such grain, except a certain. rate agreed upon between the defendant and other railway companies owning competing lines; the rate so fixed by the competing companies was established by an agreement made by them for the purpose of preventing competition," and was enforced and maintained, in so far as it was enforced and maintained, by an agency of such companies established for that purpose, and called a "pool"; that the "pool" was managed by a person selected by the companies for that purpose, and called a "pool commissioner "; that at the time mentioned all the railway companies that "were so located or situated as to be competitors for such freight were parties to said arrangement and 'pool'; that the rate established by the combination of common carriers was twenty-one and a half cents per hundredweight; that the defendant, "notwithstanding such combination and pool, offered and gave to Closser & Co. an inducement for shipping freight over its line at a rate lower than that fixed by the combination and 'pool'; but in order to do this, and be able to report to the pool commissioner that such pool rate had been charged," the defendant "requested Closser & Co., when shipping freight over its lines, to pay the pool rate, and agreed at the same time with Closser & Co. to pay a certain portion of the pool rate so charged, as a rebate, in order that the shippers might, in the end, be only required to pay the rate fixed by the defendant"; that "in this manner and for this purpose the defendant did, on the same day, agree with Closser & Co., in respect to the shipment of grain, that Closser & Co. should pay the pool rate of twenty-one and a half cents per hundred weight, and that the defendant would thereupon repay to them four and a half cents on every hundredweight of grain so shipped as a rebate, so that they should, in the end, pay as freight upon such shipment but seventeen cents per hundred weight, which was then in fact the rate of the defendant for such freight between said points as then agreed upon, which rebate the defendant agreed to pay promptly after such shipment." It is also alleged that grain was shipped by Closser & Co. under the contract, and that they paid the "pool" rate.

The third paragraph is essentially the same as the second, so far as concerns the combination and pool, the agreement for rebate, and the like, but it counts upon a contract, similar