BLAKE
C.J.
This is
an appeal from a judgment which was entered on the pleading.
The amended complaint was filed January 25, 1890, and alleges
that the "defendant, the Northern Pacific Railroad
Company, is a corporation duly organized, created, and acting
under the laws of the United States;" that the following
contract in writing was entered into November 15, 1885
"This indenture, made and entered into this 15th day of
November, A. D. 1885, by and between the Northern Pacific
Railroad Company, party of the first part, and W. H. Bullard
and Thomas H. Irvine, copartners, under the firm name of
Bullard & Irvine, of Miles City, Montana territory, parties
of the second part, witnesseth: That the said party of the
first part, for and in consideration of the covenants
hereinafter mentioned, made, and to be performed by the said
parties of the second part, hereby promises and agrees to and
with the said parties of the second part to carry and
transport over its line of railroad from St. Paul, Minnesota
to Miles City, Montana territory, all the casks, cases, kegs,
and barrels of beer, which the said parties of the second
part may deliver in car-load lots to the said parties of the
first part, at said St. Paul, between the dates hereof and
the first day of November, A. D. 1887, for the sum of
seventy-five cents for each and every one hundred (100)
pounds of said casks, cases, kegs, and barrels of beer
delivered, as aforesaid, in car-load lots. And the party of
the first part further agrees to carry and transport over its
said line of railroad from said Miles City, Montana
territory, to said St. Paul, Minnesota, all empty beer casks,
cases, and kegs, and barrels, which the said parties of the
second part may deliver in car-load lots to the said party of
the first part at said Miles City, between the date hereof
and the first day of November, A. D. 1887, for the sum of
fifty cents for each and every one hundred (100) pounds of
said empty beer casks, cases, kegs, and barrels, delivered,
as aforesaid, in car-load lots. And the said party of the
first part further agrees that if between the date hereof and
said first day of November, A. D. 1887, its regular schedule
of freight rates on casks, cases, kegs, and barrels of beer,
in car-load lots, from said St. Paul to said Miles City, and
on empty beer casks, cases, and kegs, and barrels, in
car-load lots, from said Miles City to said St. Paul, should
be reduced to a sum less than the rates herein provided, the
said party of the first part will thereupon permit the said
parties of the second part to ship under, and have the
benefit of, such lower regular schedule rates. In
consideration of the premises, the said parties of the second
part do hereby covenant and agree, jointly and severally,
that they will well and truly pay, or cause to be paid, to
the said party of the first part, all sums which may become
due under this contract for transportation, as aforesaid. And
said parties of the second part further covenant and agree
that they will not brew or manufacture any beer or other malt
liquors at or within the corporate limits of said Miles City,
Montana territory, between the date hereof and said first day
of November, A. D. 1887. It is further agreed by and between
the parties hereto that in case any casks, cases, kegs, or
barrels of beer, or any empty beer casks, cases, kegs, or
barrels, belonging to, or shipped by, said parties of the
second part, are injured or damaged in any manner whatsoever
while in transit over or on the railroad of the said party of
the first part, the said party of the first part shall not be
liable therefor, unless such injury or damage shall be caused
by the negligence of the servants or employes of the said
party of the first part. In testimony whereof, the said party
of the first part has caused these presents to be signed by
its general freight agent this 15th day of November, A. D.
1885, and the said parties of the second part have hereunto
set their hands and seals this 15th day of November, A. D.
1885. J. H. HANNAFORD, General Freight Agent. W. H. BULLARD.
[Seal.] THOS. H. IRVINE. [Seal.]" It is further alleged
"that, subsequent to the making of the contract
aforesaid, it was agreed
and understood by and between the said parties that the
freight on all the casks, cases, kegs, and barrels of beer,
which the said defendant might deliver, pursuant to the terms
of the said contract, should be paid for by the said Bullard & Irvine at the regular schedule of freight rates on car-load
lots charged by said defendant, and, in case such schedule
freight rates should be in excess of seventy-five cents per
hundred pounds, that the overcharges should be rebated,
settled, and paid by said defendant to the said Bullard & Irvine, by vouchers upon any and all such freight bills being
forwarded by the said Bullard & Irvine to the said defendant;
*** that thereafter, and before the 1st day of January, 1887,
and while said contract was still operative and in force, the
said defendant delivered to the said Bullard & Irvine, at
Miles City, Montana territory, eleven (11) car-loads of beer
in barrels, the weight of which, in the aggregate, amounted
to 235,710 pounds; *** upon the said eleven car-loads of
beer, the way-bills were made out by the said defendant's
company, and the said Bullard & Irvine were required by said
company and did pay freight thereon, amounting, in the
aggregate, to the sum of $2,358.77; *** that subsequent to
the delivery of each of said car-loads of beer, and pursuant
to the agreement aforesaid, the said Bullard & Irvine
forwarded the way-bills therefor to the general freight
office of the said defendant's company at St. Paul,
Minnesota, accompanied by vouchers for the overcharges
thereon, over and above the price specified in said contract,
and demanded payment of the rebate thereon; *** that the said
defendant has failed, refused, and neglected to pay to said
Bullard & Irvine, or to this plaintiff, the said overcharges
on the said eleven car-loads of beer, or any part thereof,
although often duly demanded; *** that the said overcharges
on said eleven car-loads of beer so paid by the said Bullard & Irvine, over and above the contract price therefor and
which said defendant agreed to pay to said Bullard & Irvine,
amounts to the sum of $590.95." It is also alleged that
the said contract, and all rights, claims, and demands under
it, were transferred and sold, December 12, 1888, to Bullard.
The prayer is for judgment against the defendant for the sum
of $590.95. The answer was filed May 9, 1890, and is as
follows. "The defendant for answer to the amended
complaint of plaintiff in this cause alleges that, on 4th day
of February, 1887, there was passed by the congress of the
United States, and approved by the president, an act entitled
'An act to regulate commerce;' that, up to, and
including, the 4th day of April, 1887, this defendant had
duly performed all the conditions on its part of the contract
in the said amended complaint set out and alleged, and has,
up to, and including, the 4th day of April, 1887, paid to the
said Bullard & Irvine, and the said Bullard individually, all
rebates and overcharges of every kind and nature whatsoever,
due them by the terms of said contract, for all property
shipped by the said Bullard & Irvine over the defendant's
road, up to and including that date, and that all the claims
made in plaintiff's complaint have arisen, if at all,
since the 4th day of April, 1887; that defendant did, in the
month of March, 1887, by its duly-authorized agent for that
purpose, J. M. Hannaford, duly notify the said Bullard & Irvine, and the said Bullard, individually, that by reason of
the law hereinbefore named, and in obedience to the command
and requirements thereof, all special and contract rates
quoted to, and entered into by, this defendant company with
the said Bullard & Irvine would be canceled, and declared
null and void on the 31st day of March, 1887; that the said
Bullard & Irvine, and the said plaintiff Bullard,
individually, received the said notice from this defendant;
that on and after the 5th day of April, 1887, by reason of
the said law, and in compliance with the provisions thereof,
this defendant charged the said Bullard & Irvine, for
property shipped by its road, whether in car-load lots, or
otherwise, regular schedule rates for freight, and the same
rates charged by it to any and all other persons for like
contemporaneous service, and no more nor less; that by reason
of the said law, and the provisions thereof, and not
otherwise, this defendant has refused, and does now refuse,
to pay the said plaintiff any rebate or drawback for goods
shipped by defendant's road since the 5th day of April,
1887. Defendant denies that there is due the said plaintiff
from this defendant, by reason of the said contract, or by
reason of any consideration whatever, *** any sum."
Thereafter, on motion, the court rendered judgment in favor
of Bullard for the amount prayed for in said complaint.
We
assume for the purposes of this inquiry that the contract
between the parties, which is set forth in the pleadings, was
legal at the time of its execution. The act of congress
"to regulate commerce," which is mentioned in the
answer, was approved February 4, 1887, but the provisions
which we must examine took effect sixty days thereafter.
Contracts similar to that before us are not excepted from the
operation of this law, and became invalid under the second
section, which is as follows: "That if any common
carrier,...
