Ragan v. Aiken.

payments aggregating about $4,000. The complainants insist, that under the charter of the company, the legal rate of freight for the length of said road would only be five and one-quarter cents per hundred pounds, and the main object of the bill is to recover the excess of payments over the legal rate of charge.

The bill further states that the defendant, as an inducement to other merchants in Lee county, Virginia, and Hancock county, Tennessee, to have their goods shipped to Rogersville, so as to pass over his road, has entered into a contract with those merchants not to charge them exceeding fifteen cents per hundred pounds on any and all articles for carriage on his road, and that large shipments have accordingly been made over the road to these merchants. The complainants allege that this discrimination is illegal, and ask the court to enjoin the defendant from so discriminating.

The demurrer raises the questions whether the defendant is liable to the suit individually instead of the corporation, and whether the charges of freight and discrimination complained of are authorized by the charter of the Rogersville & Jefferson Railroad Company.

[Omitting minor questions.]

The third ground of demurrer is that the facts stated in the bill do not show a case of improper discrimination within the meaning of the franchises under which the defendant is operating his road. The facts are that the defendant, to induce merchants in Lee county, Virginia, and Hancock county, Tennessee, to ship over his road, instead of taking a different route, has entered into a contract with them not to charge exceeding fifteen cents per hundred pounds on their goods. And the question is whether the defendant can make such a contract, under the circumstances stated.

The English authorities hold that at common law the common carrier is not bound to carry at equal rates for all customers in like condition. The authorities are collected in McDuffee v. Portland & Rochester Railroad, 52 N. H. 430; s. c., 13 Am. Rep. 72, and in 3 Am. & Eng. R. Cas. 602. In this country, the courts have generally held otherwise, and that statutes prohibiting discrimination are merely declaratory of the common law. Sinking Fund Cases, 99 U. S. 719; Messenger v. Pennsylvania Railroad Company, 36 N. J. 407, 531; s. c., 13 Am. Rep. 457. Discrimination in rates of freight, if fair and reasonable, and founded on grounds consistent with the public interest, are allowable. Hersh v. Northern, etc.,

Ragan v. Aiken.

Railroad Company, 74 Penn. St. 181; Chicago, etc., Railroad Company v. People, 67 Ill. 11; Fitchburg Railroad Company v. Gage, 12 Gray, 393. The important point to every freighter is that the charge shall be reasonable, and a right of action will not exist in favor of any one unless it be shown that unreasonable inequality had been made to his detriment. A reasonable price paid by such a party is not made unreasonable by a less price paid by others. Or as said by CROMPTON, J., to the plaintiff, upon the trial of such a suit: "The charging another party too little is not charging you too much." Garten v. B. & E. Railroad Company, 1 B. & S. 112, 154, 165; McDuffee v. Portland & Rochester Railroad, 52 N. H. 430; s. c., 13 Am. Rep. 72. In determining whether a company has given undue preference to a particular person, the court may look to the interests of the company. Ransome v. Eastern Counties Railway, 1 C. B. (N. S.) 437; id. 135.

In other words, if the charge on the goods of the party complaining is reasonable, and such as the company would be required to adhere to as to all persons in like condition, it may nevertheless lower the charge of another person if it be to the advantage of the company, not inconsistent with the public interest, and based on a sufficient reason. It is obvious that the intention of the defendant, in this instance, was not to discriminate against the complainants in favor of any person of the same place, and in the same condition. His object was to get business for his road from persons at a distance from its terminus, which otherwise would reach their destination by a different route. Under these circumstances we cannot see that the contracts complained of are against public policy, or that the complainants have been damaged, if the charges on their goods were reasonable. The bill contains no allegation that the charges made against and paid by the complainants were unreasonable. Without such an averment there has been no damage. The third ground of demurrer was therefore well taken.

Affirm the decree with costs.

Decree accordingly.

Evidence-deposition — disqualification of deponent by infamy.

The deposition of a witness, taken after indictment for forgery but before trial therefor, he having been subsequently convicted thereof, is incompetent by reason of the infamy of the deponent.*

THE opinion states the point.

Fred. Barnard, for appellant.

M. C. McLemore and Scott & Levi, for appellee.

STAYTON, J. [Omitting other matter.] The exclusion of the deposition of Jesse Stancel was not error.

The deposition of Stancel was taken before his conviction of the offense of forgery but after he had been indicted for that offense. The offense of forgery is one which at common law was held to ren der the person guilty thereof infamous, and hence incompetent to testify. 1 Greenl. Ev. 373.

*Compare Whitehurst v. Pettipher, ante, 520.

Jones v. George.

The ground of this exclusion is thus stated by Mr. Greenleaf: "The basis of the rule seems to be, that such a person is morally too corrupt to be trusted to testify; so reckless of the distinction between truth and falsehood, and insensible to the restraining force of an oath, as to render it extremely improbable that he will speak the truth at all." Greenl. Ev. 372.

The judgment of conviction is but the evidence of the moral depravity which creates the disqualification; and the reason for the exclusion of the testimony of a party while under indictment upon which a conviction is subsequently had, is just as strong as though his testimony was given after conviction.

The facts and law existing at the time of the trial, and not at the time of the taking of a deposition, must be looked to ordinarily to determine its competency. Weeks' Law of Depositions, 515, and citations.

There being no error in the judgment, it is affirmed.

Judgment affirmed.

JONES V. GEORGE.

(66 Tex. 149.)

Sale-warranty, implied — measure of damages.

A warranty is implied on a sale of drugs by a druggist.

In an action by a planter for breach of implied warranty on a sale of a compound for destroying the cotton worm, the estimated value of the crop lost may not be recovered.

A

CTION for breach of warranty. The head-note and opinion show the case. The defendant had judgment below.

George P. Finlay, for appellant.

Willie & Cleveland, for appellee.

WATTS, J. Coм. APP. By the amended petition appellant represented that appellee warranted the drug sold and delivered to him to be genuine "Paris green;" the appellee excepted to the amendment on the ground that it asserted a new cause of action, VOL. XLII - 87

Jones v. George.

and that more than two years had elapsed between the breach of the warranty and the assertion of the same by the amendment.

The cause of action was stated in the original petition; the amendment but amplified the representation contained in the original. There was no new cause of action set up in the amendment, and therefore the statute of limitations had no application. It is claimed that in the sale of chattels, where the purchaser has an opportunity to examine before the purchase is made, the common-law rule of caveat emptor applies without exception. As a general rule, the doctrine does apply in the purchase of chattels, when an opportunity for examination by the purchaser is shown. But where from the nature of the article, or the peculiar character of the business in which the same is being sold, it is shown that an examination would not avail the purchaser any thing, it might constitute an exception to the general rule, dependent upon the circumstances of each particular case.

The appellee was engaged in the business of a druggist, holding himself out to the public as one having the peculiar learning and skill necessary to a safe and proper conducting of the business. The general customer is not supposed to be skilled in the matter, and as represented in this case, does not know one drug from another; but in the purchase of drugs, the customer must rely upon the druggist to furnish the article called for; and in this particular business, the customer who has not the experience and learning necessary to a proper vending of drugs would not be held to the rule that he must examine for himself. It would be but idle mockery for the customer to make the examination, when it would avail him nothing.

On the contrary, the business is such that in the very nature of things the druggist must be held to warrant that he will deliver the drug called for and purchased by the customer. If as claimed, the appellee delivered to appellant some harmless or useless drug instead of the Paris green asked for by appellant, he would be held liable for the damages resulting from the act as a natural or legal consequence.

We conclude that the court below erred in sustaining the appeilee's exceptions and dismissing the suit.

In view of a trial in the court below, it is deemed proper to indicate our opinion as to the correct rule as to this character of cases in measuring the damages.